The other day, I posted a news story about a New Jersey Supreme Court decision concerning what expungement means – and doesn’t mean – in terms of the media’s ability to discuss a case involving a named individual where the individual’s conviction was subsequently expunged. At the time, I commented that once again, a U.S. court had issued an opinion that may run counter to the views of Europeans who have recently started talking about a “right to be forgotten.”
The concept of a “right to be forgotten” started with the notion of data controllers not retaining data past its use requirements or allowing people to request that their data be deleted. Peter Hustinx, the European Data Protection Supervisor, recently wrote:
A newly codified “right to be forgotten” would ensure the deletion of personal data or the prohibition to further use them, without a necessary action of the data subject, but at the condition that this data has been already stored for a certain amount of time. The data would in other words be attributed some sort of expiration date. This principle is already affirmed in national court cases or applied in specific sectors, for instance for police files, criminal records or disciplinary files: under some national laws, information about individuals is automatically deleted or not to be further used or disseminated, especially after a fixed period of time, without need for a prior analysis on a case by case basis.
The EDPS considers that the right to be forgotten could prove especially useful in the context of information society services. An obligation to delete or not further disseminate information after a fixed period of time makes sense especially in the media or the internet, and notably in social networks. It would also be useful as far as terminal equipments are concerned: data stored on mobile devices or computers would be automatically deleted or blocked after a fixed period of time, when they are no more in the possession of the individual. In that sense the right to be forgotten can be translated in a “privacy by design” obligation.
Some Americans I’ve chatted with seem somewhat dismissive of – or skeptical about – a “right to be forgotten” but I don’t know if they are reacting to what Hustinx was describing or a broader definition that would allow individuals to have their information removed from sites on the Internet. Curiously, some people who seem to quickly dismiss “right to be forgotten” advocate strongly against mandatory data retention, urge businesses not to collect a lot of information, and want businesses to purge data when it is no longer needed. In some sense, then, I think a number of American privacy advocates really might embrace the concept of a “right to be forgotten” if it were called by some other name such as “mandatory data deletion.” But how far should such a right extend? Would it extend to requiring sites and search engines to remove old information or unflattering information that was more than “x” months or years old? If so, that would open up a huge can of First Amendment and other issues here.
Some countries, like Germany, may not necessarily codify a right to be forgotten but do have laws that might prohibit publication of individuals’ identities after a certain amount of time or under certain conditions. Back in November 2009, Americans learned of a lawsuit against WikiMedia filed by attorneys for a convicted murder. The lawyers asserted that under German law, the media – including Wikipedia – was barred from publishing the names of two convicted murderers as they had served their sentence, were attempting to be rehabilitated, and were no longer public figures under German law. The attorneys wrote, in their cease and desist letter to Wikimedia:
The German courts including several Courts of Appeals, have held that our client’s name and likeness cannot be used any more in publication regarding Mr. Sedlmayr’s death (cf. e.g. Nuremburg Court of Appeals Judgment dated December 12, 2006, File No. 3 U 2023/06, published in Magazindienst 2007, 313-31,OLGR Nuremberg 2007, 227,ZUM-RD 2007, 133-134 and Court of Appeals Frankfurt, Judgment dated February 6, 2007, File. No. 11 U 51/06).
A foreign power should not be able to censor publications in the United States, regardless of whether doing so suits the country’s domestic law. The current dispute is reminiscent of LICRA v. Yahoo!, in which a French court ordered the American company to prevent access to its Nazi memorabilia auctions by French residents, then fined the company for failing to do so.
Wikipedia’s administrators’ discussion of the issue can be found on Wikipedia.
Did, and do, the convicted murders have some “right to be forgotten” in terms of the media’s ability to name them or identify them? What happened in the lawsuit against Wikimedia?
With the help of Mark Boltz who kindly helped me understand Google’s translation of a Buskeismus report on the case, it seems that while the convicted murder had prevailed in lawsuits against Axel Springer, a German publisher, it failed in its suit against Wikimedia. From what I can tell, Wikimedia did not even have a lawyer at one of the hearings. I’ve emailed Wikimedia asking for more clarification of the case, but have not yet received their response.
I’ve now read a number of translated articles and it appears (but I cannot be sure due to translation difficulties) that although the convicted murder had prevailed in some decisions against several entities, an intervening ruling by Germany’s federal court in a related case had overturned earlier decisions prior to the Wikimedia decision in January 2010. It appears that the federal court ruled that it was acceptable for Der Spiegel to maintain its originally contemporaneous files on the case in an archive where readers could purchase the articles but where the articles were not still freely available. In another decision, the federal court held that Deutschlandradio was legally permitted to maintain transcripts of broadcasts that had explicitly identified the convicted murderers. The court also appeared to recognize the historical importance of some cases and that attempting to suppress publication or requiring media sites to go back and delete or redact old articles would impose a too-heavy obligation on media and suppress freedom of expression.
As I read/translate the articles, the German federal court may have decided that sometimes, the privacy rights of individuals do take second place to the broader public and historical interest in a matter.
But of course, I’m not a lawyer and I don’t speak German and I could be totally wrong in what I think I understood from the articles I read. It would be great if some privacy lawyers or media lawyers wrote about the outcome of the cases brought on behalf of this one convicted murder and the implications of the decisions both for European privacy law and for American journalists or bloggers who refer to German cases.
And what does it mean, if anything, in terms of a broader conceptual approach to a “right to be forgotten” on the Internet? Has Germany’s federal court established that any right to be forgotten has exemptions for cases of historical or great public interest?
Image of German Federal Court of Justice by Kucharek, used under Creative Commons License.