Short presentation of judgment ECtHR on the "right to be forgotten" in relation to defamatory news content on the internet

Voorhoof, Dirk

English

Ghent University Academic Bibliography

IRIS 2013-9/1European Court of Human Rights: We˛grzynowski and Smolczewski v. PolandThe European Court of Human Rights (ECHR) has recently clarified the application of freedom of expression whenconflicting with personality rights in the environment of online news media and digital archives. The case concernsthe complaint by two lawyers that a newspaper article damaging to their reputation - which the Polish courts,in previous libel proceedings, had found to be based on insufficient information and in breach of their rights -remained accessible to the public on the newspaper’s website. They complained that the Polish authorities, byrefusing to order that the online version of the news article should be removed from the newspaper’s websitearchive, breached their rights to respect for their private life and reputation as protected by Article 8 of theEuropean Convention on Human Rights.In its judgment, the Court emphasises the potential impact of online media, stating that the Internet is “an in-formation and communication tool particularly distinct from the printed media, especially as regards the capacityto store and transmit information”. The Court stresses the substantial contribution made by Internet archives topreserving and making available news and information and it reiterates that news archives “constitute an impor-tant source for education and historical research, particularly as they are readily accessible to the public and aregenerally free. While the primary function of the press in a democracy is to act as a “public watchdog”, archiveshave a valuable secondary role in maintaining and making available to the public archives containing news whichhas previously been reported”. According to the Court the internet “is not and potentially never be subject to thesame regulations and control” as the traditional media. The Court, however, also recognises that “the risk of harmposed by content and communications on the Internet to the exercise and enjoyment of human rights and free-doms, particularly the right to respect for private life, is certainly higher than that posed by the press”. Thereforeit accepts that the policies governing reproduction of material from the printed media and the Internet may differ,taking also into consideration technology’s specific features in order to secure the protection and promotion of therights and freedoms at issue.Turning to the particular circumstances of the case, the Court is of the opinion that the newspaper was not obligedto completely remove from its Internet archive the article at issue, as was requested by the two lawyers. The Courtfirmly states “that it is not the role of judicial authorities to engage in rewriting history by ordering the removalfrom the public domain of all traces of publications which have in the past been found, by final judicial decisions,to amount to unjustified attacks on individual reputations” and it also refers to the legitimate interest of the publicto have access to the public Internet archives of the press, as being protected under Article 10 of the Convention.The Court is of the view that the alleged violations of rights protected under Article 8 of the Convention should beredressed by more adequate remedies available under domestic law and it refers to the observation by the WarsawCourt of Appeal in the present case, that it would have been desirable to add a comment to the article on thewebsite informing the public of the outcome of the civil proceedings in the earlier libel case regarding the printedversion of the article. The Court observes that in the proceedings at the domestic level the applicants did notsubmit a specific request for the information to be rectified by means of the addition of a reference to the earlierjudgments in their favour. It follows from the Court’s judgment that a rectification or a reference to the judgmentin the libel case about the printed version of the article at issue, would have been a pertinent and sufficientinterference with the rights of the newspaper in order to secure in its online archives the effective protection ofthe applicants’ rights. Hence, the Court accepts that the Polish authorities complied with their obligation to strikea balance between the rights guaranteed by Article 10 and Article 8 of the Convention. The requested limitationon freedom of expression for the sake of the applicants’ reputation in the circumstances of the present case wouldhave been disproportionate under Article 10 of the Convention. Therefore the Court comes to the conclusion thatthere has been no violation of Article 8 of the Convention.• Judgment by the European Court of Human Rights (Fourth Section), case of We˛grzynowski and Smolczewski v. Poland, Appl. No. 33846/07 of 16July 2013http://merlin.obs.coe.int/redirect.php?id=16695ENDirk VoorhoofGhent University (Belgium) & Copenhagen University (Denmark) & Member of the Flemish Regulator for theMediaIRIS 1The objective of IRIS is to publish information on legal and law-related policy developments that are relevant to theEuropean audiovisual sector. Despite our efforts to ensure the accuracy of the content, the ultimate responsibilityfor the truthfulness of the facts on which we report is with the authors of the articles. Any opinions expressedin the articles are personal and should in no way be interpreted as representing the views of any organisationsrepresented in its editorial board.© European Audiovisual Observatory, Strasbourg (France)IRIS 2

European Court of Human Rights: Case of Węgrzynowski and Smolczewski v. Poland

https://biblio.ugent.be/publication/4188968/file/6805727

European Court of Human Rights: Case of Węgrzynowski and Smolczewski v. Poland

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