On June 28, 2018, the European Court of Human Rights (ECHR) held in the matter of ML and WW v Germany (No 60798/10 65599/10) that the right to be forgotten cannot trump the public’s right to access archived news. The matter was brought by two brothers who petitioned the Court in an attempt to anonymize archived media reports relating to their conviction in a high-profile murder in 1993.

The ECHR found that a fair balance had to be struck between the applicants’ right to respect for their private life under Article 8 of the European Human Rights Convention, the media’s rights to freedom of expression under Article 10 of the Convention and the rights of the public to be informed.

The ECHR determined that the right of the public to be informed of a topical event and to conduct research into past events trumped the brother’s interest in no longer being confronted with their convictions. The ECHR noted that an important function of the media is in ensuring that public access to old news items were preserved to facilitate public access. The Court opined that the removal of these news items could have a chilling effect on the press’s freedom of expression.

The judgment is the latest in a series of actions launched by the brothers after their release from prison in 2007. The Hamburg Regional Court found in their favour but the judgment was quashed by Germany’s Federal Court of Justice. The pair appealed to the Federal Constitutional Court but were denied leave. The brothers then sought and have now been denied recourse through the ECHR.

Summary By:  Jennifer R Davidson

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