The right to be forgotten: is it absolute?

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Many of us think that we all have an absolute right to be forgotten from the ether – Google has received requests to remove over 2 million links from its search results since 2014. But, back in June, the European Court of Human Rights ruled that there isn’t an absolute right – particularly, where murderers are concerned.

The case of ML and WW v Germany concerned two half-brothers who were both convicted of murdering a famous German actor in 1991. They brought legal proceedings to try to force the German media to delete their names from online case reports, claiming that, under Article 8 of the European Convention on Human Rights (ECHR), they had the right to privacy – so archived online documents concerning their life sentences should be anonymised.

Europe’s top Human Rights Court disagreed, siding with German Supreme Court’s original decision. While the pair had “a considerable interest in no longer being confronted with their conviction”, the Court found that the public interest of freedom to access information under Article 10 of the ECHR outweighed any interference with the individuals’ rights to privacy.

On that basis, Article 8 had not been breached, and the German Court had correctly applied the balancing test for this type of claim. In reaching its decision, the Court noted that:

  • there was a very high public interest in accessing information on crimes like murder
  • the archived items weren’t broadcast widely and they had to be individually searched for
  • the individuals had actively encouraged media coverage of their case
  • it wouldn’t interfere, as long as national courts stayed within the limit of the balancing test.

The Court did comment, though, on the potentially higher impact that search engines can have compared to traditional printed media. But, even so, the balancing test still needs to be applied.

The right to be forgotten has been at the forefront of debate for some time. Back in April, we looked at the High Court’s ruling against Google: that a criminal could benefit from the right to be forgotten. That case concerned two convicted businessmen. The first had shown remorse for his past crimes, and the Judge felt that the information available through Google was out of date, irrelevant and of no legitimate interest to justify its continued availability. But, the second had continued to mislead the public since leaving prison – as such, keeping his criminal information available on Google minimised the risk that he would continue to do so.

The main thing we can draw from these cases is that the right to be forgotten is never absolute, and that each situation will turn on its own facts. The Courts will often sway differently in balancing an individual’s right to privacy and data protection with the wider public interest of transparency, security and freedom of expression.