The ECHR to bash the online right to be forgotten

On Oct. 19 the European Court of Human Rights issued the decision of the case 71233/13 – Fuchsmann vs Germany where the Court held that:

No violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

The case concerned the German courts’ rejection of the request by an internationally active entrepreneur for an injunction against  certain statements about him in an article published in the online edition of the New York Times.

The Court found that the German courts had struck a reasonable balance between the applicant’s right to respect for his private life under Article 8 and the newspaper’s right to freedom of expression guaranteed by Article 10 of the Convention. They had taken into consideration, in particular: that there had been a public interest in the alleged involvement of the applicant, a German businessman, in embezzlement and organised crime; that there had been a sufficient factual basis for the statements at issue; and that the article – which concerned mainly his professional life – was free from polemic statements and insinuations.

This decision settles a few important points to be taken into account in the relationship between Privacy and Data Protection:

  • this is an ECHR Article 8 case (privacy) and not an article 7 EU Charter of Fundamental Rights (Data Protection). Nevertheless, the complainant tried to “force” the Google Spain EUCJ into an entirely different legal domain such as  ECHR Article 8, but with no avail,
  • if an article contributes to a debate of public interest  in the alleged involvement of the concerned person it is legitimate mentioning him by name,
  • public interest also existed in the publication of the article in the online archive of the newspaper. It reasoned that the public had not only an interest in news about current events, but also in the possibility of researching important past events,
  • Internet archives make a substantial contribution to preserving and making available news and information. Such archives constitute an important source for education and historical research, particularly as they are readily accessible to the public and are generally free.

 

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