January 07, 2022
By Jacob van de Kerkhof
An interesting feature of European law, the right to be forgotten refers to a person’s right to have private information about them removed from internet searches and other directories. Long recognized in the case-law of the European Court of Human Rights (ECtHR), more recently the right to be forgotten has also been acknowledged by the European Court of Justice (CJEU) in the landmark decision Google Spain v Gonzalez. Cases on the right to be forgotten often involve a balancing act between a data subject’s right to private life under Article 8 of the European Convention of Human Rights (ECHR) and a data controller’s right to freedom of expression under Article 10 ECHR.
In recent judgments, the ECtHR has expanded the scope of the right to be forgotten somewhat. In Hurbain v Belgium (see commentary by Sarah de Heer on this blog), the ECtHR found that an order to anonymise the name of a person responsible for a driving accident, in an article in a newspaper’s online archive, did not breach the applicant publisher’s right to freedom of expression. The Court held that the test laid down in Axel Springer v Germany was leading in balancing the right to private life and freedom of expression. In a more recent decision, Biancardi v Italy, relating to a similar request, the Court provided additional guidance on the application of the Springer-test in an online context, further widening the scope of the right to be forgotten.
Biancardi revolves around a 2008 newspaper article, describing a fight and stabbing in a restaurant. The applicant, Mr Biancardi, was found liable in civil proceedings for keeping an article about the incident on his newspaper’s website, without de-indexing the tags related to it – despite being requested to do so. He complained that this was a breach of his right to impart information under Article 10.
The article in question named those involved in the incident, that is the family who owned the restaurant (two brothers and their respective sons), and gave details about related criminal proceedings. In 2010, one of the two brothers (the claimant) and his restaurant sent a formal notice under Italian law (diffida stragiudiziale) to Mr Biancardi, requesting the removal of the article from the internet. Mr Biancardi refused and the claimant filed a case in the District Court of Chieti against Google and Mr Biancardi under the Italian Personal Data Protection Code.
While proceedings were ongoing, Mr Biancardi de-indexed the article, seeking to settle the case. In light of this, the District Court ruled that there was no need to re-examine the request for the article’s removal. Nevertheless, they awarded the claimant compensation for non-pecuniary damages incurred from the moment he sent a formal notice requesting the article’s removal in September 2010, to the moment when Mr Biancardi de-indexed the article in May 2011. During that time, the processing of the claimant’s personal data had not complied with the Personal Data Protection Code and easy access, via the internet, to information on the criminal proceedings had breached his right to respect for private life.
Mr Biancardi’s right to freedom of expression could not outweigh the claimant’s right to private life: the general public’s right to information had been satisfied in the period from the initial posting of the article (2008) and the formal request for its removal (2010). This finding was upheld in the Italian Supreme Court, which emphasised that the unlawfulness of the processing of the claimant’s data lay in the fact that the article was easily accessible for months after a formal notice to de-index it had been sent out. Mr Biancardi then brought a complaint before the ECtHR, alleging a violation of his rights under Article 10.
The Court noted that this particular case differs from its previous jurisprudence. It does not concern the content of the publication, nor the manner in which it was published – with or without anonymisation – but rather the applicant’s failure to de-index it. From this starting point, the Court sought to define the interference and to identify the applicable principles to assess its proportionality. The question before the Court was twofold: a) was the applicant’s freedom of expression breached by his being found liable for refusing to de-index the material and b) can an obligation to de-index material be extended to administrators or journalists rather than being limited to search engines (as seen in Google Spain).
To answer these questions, the Court first needed to determine the scope of the obligation to de-index. The precise meaning of that term (as well as similar terms such as de-listing), can only be drawn from the specific context of the legislative document in which it appears. In the context of this decision, the Court defined de-indexing as “the activity of a search engine consisting of removing, on the initiative of its operators, from the list of results displayed (following a search made on the basis of a person’s name) internet pages published by third parties that contain information relating to that person”. In this particular case, the operator was a journalist, adding another dimension to the request for the de-indexing of the article.
The Court confirmed that such a request was indeed an interference with the applicant’s right to freedom of expression under Article 10. Subject to the criteria laid out in Article 10(2), for such interference to be legal it must be provided by law, have a legitimate aim and be necessary in a democratic society. As the request was provided for by Italian law and pursued the legitimate aim of protecting the reputation of others the first two requirements were met. This left the Court to assess the necessity of the measure in a democratic society. This involved a balancing act between the right to freedom of expression (Mr Biancardi’s contribution to the public debate) and the claimant’s right to private life. The Court reiterated the relevant principles for such a balancing act as laid down in Axel Springer: (i) the contribution to a debate of general interest, (ii) how well known the person concerned was, (iii) the behaviour of the person concerned towards the media, (iv) the method of obtaining the information in question, (v) the content, form and consequences of the publication and (vi) the severity of the sanction imposed on the applicant.
However, since the article in casu involved a subject who was not well-known and was published online, the Court noted that factual differences between this case and Axel Springer necessitated a flexible application of those criteria. The main question should be whether, in light of fundamental principles set out in previous case-law (cit. Times Newspaper Ltd. v UK, Delfi AS v Estonia and Big Brother Watch v UK), the Italian court’s finding of civil liability of the applicant had been established on relevant and sufficient grounds. Important factors in determining this were: (i) the length of the time for which the article was kept online after the request, (ii) the sensitiveness of the data at issue and, (iii) the gravity of the sanction. Regarding the first point, the Court noted that while the criminal investigation of the brothers was still ongoing at the point of the request, the article had not been updated since 2008. The Court recalled that over time the applicant’s right to disseminate information decreases, while the claimant’s right to respect for his private life and reputation increases (cf. Éditions Plon v France). On the second point, the Court found that the sensitivity of the information was determined by the fact that it concerned a criminal investigation. Sensitive information, such as that relating to a criminal procedure, weighs heavily in the balancing act between information dissemination and the right to private life. Finally, the gravity of the sanction was deemed ‘not-excessive’ as only civil, not criminal liability was found and the amount awarded in damages was in proportion to the interference with the claimant’s rights under Article 8. The Court saw no reason to deviate from the balancing act conducted by the Italian court and held that Mr Biancardi’s right to freedom of expression was not breached by the finding against him.
The right to be forgotten can take different forms. It can cover requests for anonymisation, delisting and removal of data as well as other ways to reduce the dissemination of certain pieces of information. By finding in this case that journalists can be held civilly liable for refusing to de-index content, the Court expanded the scope of the right to be forgotten. This in itself is a novel point worth discussing. A second point worth discussing is the Court’s more flexible application of the Springer criteria and the factors they chose to address. Their application seemed to favour the right to private life over the right to freedom of expression in the balancing of interests.
Firstly, it is interesting to reflect on the inclusion of journalists and online newspapers as accountable parties in the right to be forgotten. There have been cases in which a right to be forgotten request was filed with the primary source of information: journalists and newspapers. Since they hold the power to anonymise or remove content, this is a logical avenue. In an online context, this was addressed in cases cited by the Court throughout its ruling in Biancardi. Until recently, cases on de-indexation have been focused on search engines (see Google Spain; Google v CNIL) and Biancardi was the first case where a request for de-indexing was granted against a primary source. A de-indexation request does indeed seem like a less drastic remedy than an order to remove the article. It is obvious from the Court’s finding that the right to private life weighs heavily against this less impactful remedy.
The question is whether it is desirable to have journalists self-censoring content in this way – by analogy, it would be like a writer hiding his book in a library by request and removing it from the library’s catalogue so that it can only be found by highly motivated individuals. It would be more efficient to keep the search engine operator accountable for this – as the Court explains in paras 50-51, journalists have to issue a request to the search engine operator to have articles removed from search results. Furthermore, since journalists working at smaller newspapers have less means available to dispute these types of requests (after all, their core business is reporting not de-indexing), it may lead to a chilling effect on journalism by discouraging the posting of controversial material. In its third-party intervention in the case at hand Article 19 raised concerns over the expansion of the scope of delisting requirements from search engines alone to journalists and online media websites. It noted that the latter group were expressly excluded from this obligation in Google Spain and that the General Data Protection Regulation also excludes the processing data solely for journalistic purposes from such a requirement. Referring to ML & WW v Germany, Article 19 further argued that ‘right to be forgotten’ requests may have a chilling effect on media organisations – it could discourage the publication of articles containing sensitive information. In addition, these requests lead to the provision of a skewed image of the public debate: when a search with a search engine does not reveal information, users are left under the impression that that information does not exist. By making articles so difficult to find – as no one is aware of their existence – ultimately, de-listing can amount to de facto censorship.
Secondly, the more flexible application of the Springer criteria in this particular case seems to tilt the balancing act between freedom of expression and the right to private life in the latter’s favour. As outlined in the facts, in Biancardi, the article was kept online for three years after the stabbing took place and for the last seven months of this time, it was kept online illegally. During this time, the criminal proceedings the article reported on were still ongoing. At first sight, these circumstances seem to favour the newsworthiness aspect of the freedom of expression more than those in Hurbain, in which an archive entry was anonymised 17 years after the incident took place, and Google Spain, in which a request was granted 16 years after publication. This answers to the first of the Court’s own criteria, the loose version of Springer criteria listed in para 64 (“the length of time for which the article was kept online – particularly in the light of the purposes for which [the claimant’s] data was originally processed”), and the first and fifth Springer criteria(“contribution to a debate of general interest and the content” and “form and consequences of the publication”).
In this case, the Court found that the fact that the article had not been updated since 2008, the relative anonymity of the claimant, and the decreasing importance of information dissemination over time resulted in the newsworthiness of the article not weighing up to the right to respect for the claimant’s reputation. The fact that the Court does not deem de-indexation a drastic measure supports this finding. This seems to be a widening of instances in which newsworthiness does not weigh up to the right of private life, which may adversely affect the freedom of expression. Although that risk could have induced the Court to revisit the Italian court’s balancing act it did not wish to do so. Instead, it reaffirmed its previous comments in Palomo Sanchez v Spain, noting that it would need strong reasons to revisit a national court’s balancing act. Indeed, in Delfi, the Court had found that a wide margin is afforded to states striking a balance between competing private interests or convention rights. In Biancardi, the margin was sufficiently wide for the Court to refrain from revisiting the Italian court’s balancing act.
Biancardi is a widening of the scope of the right to be forgotten in two ways: firstly, the Court confirms that journalists and newspapers operating online are liable for de-indexing articles when requested to do so; secondly, in the balancing act of the right to freedom of expression and the right to private life, the latter gains greater weight when the case concerns de-indexation. That weight is reinforced by a seemingly shorter period in which an article can be considered ‘newsworthy’, especially when the claimant is relatively unknown to the public. It will be interesting to see whether the line of case law established in Hurbain and Biancardi will expand further in the future.