The ECHR plays a uniquely important role in shaping and protecting the fundamental rights and freedoms of the citizens of its Member States. That includes freedom of expression under Article 10 of the Convention, and by extension the freedom of the press.
News Media Europe notes with serious concerns two recent judgments of the ECHR in 2021 that are harmful to media freedom, in ways that do not appear to be justified or proportionate in order to reconcile different freedoms enshrined in the Convention.
In particular, the right to be forgotten which has developed as an extension of the rights to privacy and data protection has been applied in a way that threatens the freedom of the press in Europe in Hurbain vs. Belgium (application no. 57292/16) and Biancardi vs. Italy (application no. 77419/16).
The two rulings effectively sanction the removal of journalistic editorial content from the public sphere and online journalistic archives, undermining the public’s right to know and to access information of public value by expanding the intended scope of the right to be forgotten.
The ECHR ruled in Biancardi vs. Italy that a former editor-in-chief of a newspaper was liable in civil proceedings after he failed to ensure the removal of the tags of an article on the newspaper website, allowing the article to be found through a search engine. The Court found that a newspaper or journalistic archive could be required to de-index its content just like a search engine.
The ECHR ruled in Hurbain vs. Belgium that a court decision to order anonymisation of a guilty party’s identity and involvement in a deadly road accident in a newspaper article and the newspaper’s public archives would reconcile freedom of expression and the need to the individual’s right to be forgotten.
News Media Europe and its members firmly believe that removing lawful journalistic content from the public sphere is harmful to the ability of the media to carry out its role in a democratic society and can have a chilling effect on the free press.
Access to news content through search engines and journalistic archives is crucial to ensure that today’s journalists can report accurately. The full removal of information as sanctioned by the ECHR in the abovementioned cases compromises the ability of journalists to impart information.
This is precisely the reason why legislation such as the EU’s General Data Protection Regulation (GDPR) expressly foresees the need to exempt journalistic activities from the normal rules that otherwise apply to the processing of personal data.
We urge the ECHR to take due account of the serious concerns raised above and shared by the European news media industry. In our view, further substantive dialogue is required on how the right to be forgotten should be applied to effectively reconcile all freedoms at stake.
Wout van Wijk, Executive Director (firstname.lastname@example.org)