Journalism on trial and the right to be forgotten

In 2021, the European Court of Human Rights (ECtHR) handed down two significant rulings on the right to be forgotten – Hurbain v. Belgium (Third Section) and Biancardi v. Italy (First Section). These judgments are significant because they change the balance between the right to privacy and the freedom of the press under Articles 8 and 10 ECHR, to the detriment of the latter.

Until now the “right to be forgotten” has normally meant de-indexing (or delisting or de-referencing) the name of a justified complainant from the results of searches on an external search engine, such as Google, so that search results do not show contested articles containing that name. These new rulings now permit complainants to address their requests directly to the primary publisher, the website of the news organisation concerned, not the search engine, even though it would be sufficient for the search engine to carry out the de-referencing. In addition Biancardi shows how a small news site and an individual journalist can be severely impacted, and even put out of business, by the onerous burden of coping with delisting requests and litigation. Journalists and the press, particularly the local press, play a fundamental role in democratic society, but they are already in a precarious situation, and the use of privacy to debilitate them also has a negative impact on local democracy.

Hurbain has now been scheduled for a hearing before the Grand Chamber on 9 March 2022. It will have the opportunity to consider whether interference with the press was actually necessary in that case and, by implication, in Biancardi, and to restore the balance between privacy and freedom of expression under the right to be forgotten.

Facts and law

In Hurbain, reported here, a national Belgian newspaper Le Soir, was required to de-reference the name of a driver from search results on its website relating to an article about a deadly car accident he had caused by drunken driving in 1994. In Biancardi, reported here, the journalist running a small local news website, PrimaDaNoi, was condemned to pay €5,000 compensation each to a restaurant and its owner. The compensation was for damage to their reputation caused by not de-referencing upon request in 2010 their names from search results on the PrimaDaNoi website for a 2008 article relating to a family fracas and stabbing in the restaurant.

These rulings arose, fortuitously, because the complainants had addressed themselves to the news organisation rather than Google, and Google did not subsequently de-reference the article, neither when requested by Le Soir nor when taken to court alongside PrimaDaNoi. In Biancardi the complainants dropped their claim against Google when PrimaDaNoi itself carried out the de-referencing.

In both rulings the Court found that there had been an interference with the right to freedom of expression, but that the interference was prescribed by law, and pursued a legitimate objective. The Court stressed that the interference was proportionate because no requirement was imposed on the news organisation to remove the full text of the article concerned from its internal archives, only to de-index the complainants’ names.

In each case, the Court recalled its settled law in cases such as Delfi v. Estonia on the wide margin of appreciation of the domestic courts in carrying out the balancing exercise between Articles 8 and 10 ECHR. It found that there were no “strong reasons” to substitute its view for theirs, since they had weighed up the interests at stake in compliance with the criteria laid down in the Court’s case-law, that is, the six criteria laid down by the Grand Chamber in the leading case of Axel Springer v. Germany.

The failure to apply the standard criteria

This being said, the Court in Biancardi surprisingly regarded those criteria as inappropriate, and limited its examination to three issues: the length of time the article was kept online after the request (8 months), the sensitiveness of the data (relating to ongoing criminal proceedings), and the gravity of the sanction (“not-excessive”). It felt that the “crux” of the case related to the failure to de-index the offending information immediately upon request, with the resulting impact on the reputation of the restaurant and its owner, who was a private individual not a political or public figure.

However, the rulings of the domestic courts are difficult to square with the Axel Springer criteria, and their approbation by the Court in Biancardi has effectively widened the right to be forgotten in significant respects. First, all the periods involved, between the event reported in 2008, the request to de-reference in 2010, and the de-referencing in 2011, were remarkably short compared to cases such as Google Spain and indeed Hurbain. Second, the Court approved the ruling by the domestic courts that the person concerned had the right to decide when the public interest in the right to provide information was satisfied. Third, the criminal proceedings opened after the fracas were still extant, there had been no conviction or acquittal when the final domestic appeal was dismissed. Finally, the definition of “private person” was extended to a restaurant and to a well known local businessman who was happy to give interviews to the press. Unlike the ruling earlier in the same year in Gheorghe-Florin Popescu v. Romania (Fourth Section), the Court did not stress the “essential factor” that the applicant was a journalist and that the freedom of the press fulfils a fundamental function in a democratic society.

The imposition of the right to be forgotten on the press

Most importantly, Hurbain and Biancardi taken together mark a systemic extension of the right to be forgotten to the press. Previously both the CJEU and the ECtHR had consistently distinguished between press websites and external search engines, on the basis that search engines have become the major source for information online, and thus limited the right to be forgotten to modifying the results of searches in search engines. The need to protect the press was clarified in the Guidelines adopted by the Article 29 Working Party following the seminal CJEU ruling in Google Spain, which advised that “as a rule the right to de-listing should not apply […] particularly in the case of search tools of websites of newspapers.” Similarly, the ECtHR in M.L. and W.W. v. Germany stressed the “essential role played by the press in a democratic society”, and distinguished between the “amplifying effect” of search engines and the original publisher of the information, “whose activity is generally at the heart of what freedom of expression is intended to protect”.

The result is a fair balance of privacy, effectively protected by de-indexing a person’s name from the results provided by a search engine, and freedom of information, because the entire article, including the name, remains accessible on the website of the newspaper.

In Hurbain and Biancardi, the ECtHR abandoned this pragmatic approach and found that it is legitimate to require a news organization, rather than a search engine, to de-index personal information, so long as that information is retained in its internal paper and digital archives and the public may address it directly to obtain the complete information.

In this respect the Court in Biancardi narrowly interpreted third-party interventions by international and media organisations to the effect that that press freedom requires only that information in press archives should not be erased. It characterised their observations as drawing “a clear distinction between, on the one hand, the requirement to […] “de-index” […] and, on the other hand, the permanent removal or erasure of news articles published by the press.”

The failure to consider necessity

The key issue which neither the domestic courts nor the ECtHR considered is whether the interferences with press freedom concerned could be justified as necessary. Judge Pavli dissenting in Hurbain argued that it is unnecessary to oblige the press to de-reference information, because online privacy can be “quite effectively protected” by requiring external search engines to carry out any necessary deindexation. Indeed, if Google had de-referenced the article upon request in either case, that would have been sufficient to dispose of the problem. As both cases concerned sensitive information about criminal proceedings, the search engine should have carried out the de-referencing immediately upon request, following G.C. et al v CNIL (at least in Hurbain, where proceedings had closed and the sentence served long before).

In exceptional cases, it may be necessary to require the press or other primary publisher to de-reference information on its website, because the only way to protect an individual is to address that website. For example, in Manni it was inevitable that the Companies Register website would itself be searched, in addition to search engines. Otherwise it is sufficient, indeed more efficient, to require the search engine to de-reference the information. However in neither Hurbain nor Biancardi was this considered. To the contrary, the Court ruled explicitly in Hurbain that it was unnecessary to consider “possible alternative methods, less restrictive of the applicant’s right to freedom of expression, that might have been used in the present case.”

In conclusion, although there were relevant reasons to justify the interference with the applicants’ right to freedom of expression in these cases, it is questionable whether they were sufficient.

Additional considerations

There are three practical considerations which should also be taken into account when considering the balance between privacy and freedom of expression approved in Hurbain and Biancardi.

First, de-referencing by the press would impose a chilling effect on the right to information. Some internet users might be willing to search for the original of an article on the original news website if de-referencing has been carried out by a search engine. However, if the de-referencing has been carried out by the news website itself, few would go the extra mile to contact the newspaper to request full access.

Second, there is a risk, underlined in M.L. and W.W., that the “press might refrain from keeping reports in its online archives […] where measures or sanctions imposed on the press are capable of discouraging the participation of the press in debates on matters of legitimate public concern.” Judge Pavli warned that the ruling in Hurbain “may have opened the door […] to the facile cleansing of the journalistic record.”

This was the case in Biancardi, which concerned a small, two-person news site, a small and vulnerable target, with far less resources than Google to absorb the cost of requests for erasure or de-referencing and of consequent litigation. The episode in Biancardi was not isolated, but rather only one of 240 demands to take down and 40 court cases brought against PrimaDaNoi. The volume of these demands became impossible to manage, so the website first simply agreed to every request to be forgotten and finally closed down, leading to the disappearance of its archives. The burden of responding to requests and litigation thus fatally endangered both the vital ‘watchdog’ function of the press and the complementary information role of the press archives.

The unfettered deployment of the privacy rules by multiple individuals against the local press is an unfortunate counterpart to the growth of so-called SLAPP lawsuits against individual journalists (Strategic Lawsuits Against Public Participation). SLAPPs are commonly used by powerful individuals or companies against much weaker and exposed journalists. They can be against individual journalists in their own right, such as Carole Cadwalladr, whose hearing began on 14 January 2022 for defamation in relation to unwanted reporting relating to a wealthy and powerful individual. The most well-known example of harassment of an independent journalist is the case of Daphne Caruana Galizia, who at the time of her assassination in 2017 was facing 47 civil and criminal libel suits filed in various jurisdictions, including Malta and the U.S., some of which were still continuing, years after her death. The ECtHR has taken a stand against SLAPPs in a group of rulings against Romania between 2010 and 2021.

Third, Biancardi must be seen in the context of the erosion of democracy both in Europe and abroad due to the decline of the local press. The decline of local reporting reduces the scrutiny of local politics, and the impact on communities of the removal or reduction of local newspaper coverage can be profound. In effect, when local journalism declines, so does government transparency and civic engagement. The rulings in Hurbain and Biancardi can only accelerate this process.

Conclusions

The judgments in Hurbain and Biancardi stressed that the result was not erasure of the article concerned, but only its de-indexing, which was regarded as a lesser and more easily justified infringement of Article 10. However neither ruling considered whether interference with the press was actually necessary and whether a fair balance between privacy and press freedom in the online context could have been achieved by imposing de-referencing solely upon the search engine. In both cases the Court has simply deferred to the flawed approach by the domestic courts.

In addition, Biancardi illustrates how the application of privacy to local news media can have an unacceptable chilling effect, similar to SLAPP lawsuits against journalists, as well as deleterious knock-on effects on local democracy. For example, after the closure this year of La Gazette de Liège in Belgium, local journalists are considering the launch of an online successor. What hope is there for them, and the community they serve, if they can be pursued for every inconvenient truth that they report?