Please remove the article X from the Internet… Not any more!
The European Court of Human Rights has recently published a precedent judgement regarding media rights on the Internet. On 27.08.2013, the ECHR found in Wegrzynowski and Smolczewski vs Poland (case No. 33846/07) that neither a court nor the media has nor could have the task of rewriting history by deleting articles or their published content from the Internet, even if that content violates someone’s rights.
What happened in Poland?
In the year 2003, the Warszawa Circuit Court satisfied the complainants’ action against the daily newspaper Rzeczpospolita which published an article about the alleged embezzlement of public money by the complainants as liquidators in bankruptcy disputes over state enterprises. The newspaper was ordered to publish an apology and to pay compensation as donations to a charity cause chosen by the complainants. The newspaper performed those obligations.
In July 2004, the complainants discovered that the relevant article was still available via online edition of the newspaper and via results of the Google search engine. They requested removal of the article from the Internet environment, based on the earlier court adjudication.
Domestic courts agreed with the complainants that discovery of a new publishing source provides grounds for an independent claim. Still, the courts agreed with the defendant that freedom of expression is guaranteed by the Constitution and that censure and rewriting of history conflicts with the Constitution. Moreover – it would be contrary to the principles of archiving. The court suggested that the complainants supplement their action with the claim that the article in the Internet environment be supplied with a reference or a link to the court adjudication that has entered into force. The complainants did not file a claim for such an addition.
The complainants filed a petition to the ECHR for identifying a violation of Article 8 of the Convention.
ECHR found internet archives to be protected as freedom of expression
The ECHR explains that the Internet is an information and communication environment which is available to billions of users around the world. As such, it is significantly different from the printed press, especially considering the Internet’s ability to store and forward information. Therefore, information on the Internet can also pose a greater danger to a person’s private life when compared to the printed press.
The ECHR agreed with the Polish courts’ opinion that the role of justice administrating bodies is not to engage in rewriting history by ordering the media to purge the public space from all traces of issues where courts have identified a violation of personal rights. In the contrary, consideration must be given to the interest protected by Article 10 i.e. the public’s interest to have access to public Internet archives of journalism.
According to the judicial practice of the ECHR, Internet archives are protected by freedom of expression in the meaning of Article 10. The ECHR stressed that Internet archives make a significant contribution to preservation of news and information and to making those news and information available. Such archives are an important source for education and research, especially considering that they are easily available to the public and generally free-of-charge. Although the media’s primary task in a democracy is to be a “watchdog”, it also has a secondary function – storing news articles that have been published earlier and making those news articles available to public archives. Keeping Internet archives is a critically important aspect of that function.
Still, the Court refers to its own earlier judicial practice and repeats that it is not disproportional in and of itself to order a media outlet, simultaneously administrating an Internet archive, to publish a suitable reference or correction with its Internet issue if such reference or correction was relevant to the article in its printed issue. As a result, the Court also refers in connection to this dispute that it would have been relevant to supplement the article with a reference to the court judgement. But such a request was not filed to a domestic court in this dispute.
History should not be rewritten
Until now, it has been usual in the mediascape that every victim requests “removal of the allegation of X from the article’s online edition”. Now the media has a shield against that, because the Court of Human Rights assesses that the “punching bags” of media have no right to request full removal of an article or its allegations from the archive of online editions, and instead may request just an addition or correction to be added to the article.