CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 28 juin 2018

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AND W.W. v. GERMANY   (Applications nos. 60798/10 and 65599/10)                   JUDGMENT     STRASBOURG   28 June 2018   FINAL   28/09/2018         This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of M.L. and W.W. v. Germany, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Erik Møse, President,   Angelika Nußberger,   Yonko Grozev,   Síofra O’Leary,   Mārtiņš Mits,   Gabriele Kucsko-Stadlmayer,   Lәtif Hüseynov, judges, and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 5 June 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in two applications (nos. 60798/10 and 65599/10) against the Federal Republic of Germany lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two German nationals, M.L. (“the first applicant”) and W.W. (“the second applicant”), on 15 and 29   October 2010 respectively. 2.     The applicants were represented by Mr Geipel, a lawyer practising in Munich. The German Government (“the Government”) were represented by one of their Agents, Ms K. Behr, of the Federal Ministry of Justice and Consumer Protection. 3.     The applicants alleged a violation of Article 8 of the Convention on account of the decision of the Federal Court of Justice not to prohibit various media outlets from making available on the Internet old reports – or transcripts thereof – concerning the applicants’ criminal trial. 4.     On 29   November 2012 the Government were given notice of the applications. The parties’ observations were received during the course of 2013. 5.     The three media outlets concerned by the applicants’ requests, namely Spiegel online , Deutschlandradio and Mannheimer Morgen , were given leave to intervene in the written procedure in the form of a joint intervention (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The first and second applicants were born in 1953 and 1954 respectively. The first applicant lives in Munich and the second in Erding. 7.     The applicants are half-brothers. On 21 May 1993, following a criminal trial based on circumstantial evidence, they were sentenced to life imprisonment for the 1991 murder of W.S, a very popular actor. They lodged an appeal on points of law which was dismissed in 1994. On 1   March 2000 the Federal Constitutional Court decided not to entertain their constitutional appeals (nos. 2 BvR 2017/94 and 2039/94) against the decisions of the criminal courts. An application to the Court lodged by the applicants concerning those proceedings (no. 61180/00) was rejected on 7   November 2000 by a three-judge committee on the grounds that the applicants had not lodged their constitutional appeals in accordance with the procedural rules laid down by the Federal Constitutional Court Act (unpublished decision). 8.     The applicants lodged several applications for the reopening ( Wiederaufnahme ) of the proceedings, the most recent of which was submitted in 2004 and rejected in 2005. In the context of those proceedings the applicants contacted the press, providing them with documents connected to the reopening proceedings and other unspecified documents. 9.     The first and second applicants were released on probation in August 2007 and January 2008 respectively. A.     The impugned proceedings 1.     The first set of proceedings (a)     The reports complained of 10.     On 14 July 2000 the radio station Deutschlandradio – a public-law entity – published a report entitled “W.S. murdered 10 years ago”. The report stated as follows, giving the applicants’ full names: “Following a six-month trial based on circumstantial evidence S.’s partner, W., and the latter’s brother, L., were sentenced to life imprisonment. Both continue to this day to protest their innocence, and this year had their application for a retrial rejected by the Federal Constitutional Court.” 11.     The transcript of this report remained available on the archive pages of the radio station’s website, in the section entitled “Older news items”, under Kalenderblatt , until at least 2007.   (b)     The Regional Court and Court of Appeal rulings 12.     On an unspecified date in 2007 the applicants brought proceedings against the radio station in the Hamburg Regional Court, requesting that the personal data in files concerning them that had appeared on the station’s website be rendered anonymous. 13.     In two judgments of 29 February 2008 the Regional Court granted the applicants’ requests, under Articles 823 § 1 and 1004 (by analogy) of the Civil Code (see “Domestic law”, paragraphs 48-49 below). The Regional Court held in particular that the applicants’ interest in no longer being confronted with their acts so long after their conviction outweighed the public’s interest in being informed about the applicants’ involvement in those acts. 14.     By two judgments of 29 July 2008 the Hamburg Court of Appeal upheld the judgments, finding that the provision of these old news items had infringed the applicants’ personality rights. In that regard it noted in particular that in 2007 the applicants, who were about to be released, had been entitled to special protection enabling them to no longer be confronted with their criminal acts in view of their aim of reintegrating into society. The court found that they were no longer required to accept these reports being made available to the public, given that they had been prosecuted and convicted of the crime and had thus been sanctioned by society, and that the public had been sufficiently informed of the case. Furthermore, the interference with the exercise of the radio station’s right to freedom of expression had been minimal, as dissemination of the material had not been prohibited but had merely been made subject to the condition that the applicants should not be mentioned by name. 15.     The Court of Appeal observed that the fact that material on the Internet was often made permanently available to users and that the information was visibly old did not alter that conclusion. It noted that, for the person requesting anonymity, whether the report in which his or her identity was disclosed was recent or old made no difference. On the other hand, what was decisive for the person’s reintegration into society was whether or not the information mentioning his or her name was still accessible, even though material published on the Internet was generally less widely disseminated than that broadcast on television or radio or in the press. The Court of Appeal also noted the risk that other persons, such as a neighbour, an employer or co-workers, could identify the applicants’ names and contribute to a further spread of old material about the applicants’ involvement in the crime, thereby jeopardising their resocialisation. 16.     The Court of Appeal further stated that the fact that the applicants had turned to the public during the most recent reopening proceedings in 2005 – thereby giving rise to reports on them and on those proceedings – did not alter its conclusions, as the applicants had acted in a specific context which had ended with the completion of the reopening proceedings. The Court of Appeal added that the radio station was thus responsible for the interference with the applicants’ rights and that it could not argue that the information in question was contained only in digital archives. In the court’s view, the archived information was accessible in the same way as any other information available on the radio station’s website. The Court of Appeal also noted that the obligation to render material anonymous would not result in falsifying the historical truth as it was only a question of omitting a detail from the report. 17.     The Court of Appeal gave the radio station leave to appeal on points of law. (c)     The judgments of the Federal Court of Justice 18.     In two leading judgments of 15 December 2009 the Federal Court of Justice upheld the appeals on points of law lodged by the radio station (nos.   VI ZR 227/08 and 228/08), and quashed the decisions of the Court of Appeal and the Regional Court. The Federal Court of Justice began by observing that the provision of the impugned material constituted interference with the exercise of the applicants’ right to protection of their personality ( allgemeines Persönlichkeitsrecht ) and their right to privacy under Articles 1 § 1 and 2 § 1 of the Basic Law and Article 8 of the Convention. Those rights had to be balanced against the right to freedom of expression and freedom of the press as guaranteed by Article 5 § 1 of the Basic Law and Article 10 of the Convention (see “Domestic law”, paragraph 46 below). Owing to its particular nature, the scope of the right to protection of personality was not defined in advance but had to be assessed by weighing it against the divergent interests at stake; in order to do so the courts had to take into account, in particular, the specific circumstances of the case and the rights and freedoms protected by the Convention. 19.     In the view of the Federal Court of Justice, the Court of Appeal had not taken sufficient account of the radio station’s right to freedom of expression and of the public’s interest in being informed, which formed part of the radio station’s mission. Referring to the criteria established in that regard by the Federal Constitutional Court and its own case-law, the Federal Court of Justice observed in particular that truthful reports could infringe personality rights where the damage they caused outweighed the public’s interest in knowing the truth, for instance when dissemination had a significant impact or when the report stigmatised the person concerned and thus had the effect of isolating him or her socially. However, reports concerning criminal offences were part of contemporary history, which the media had a responsibility to report on. In that regard the Federal Court of Justice observed that the more a case went beyond the scope of ordinary criminal behaviour, the greater the public interest in being informed about it. In the case of reports on topical events, the public’s interest in being informed generally took precedence over the right of the person concerned to protection of his or her personality. In the Federal Court of Justice’s view, anyone who broke the law and harmed others should expect not only to receive criminal sanctions, but also to be the subject of reports in the media. 20.     The Federal Court of Justice went on to find that, over time, the interest of the person concerned in no longer being confronted with his or her wrongdoing acquired greater weight. Indeed, once the perpetrator of a crime had been convicted and the public had been sufficiently informed, repeated interference with the right to protection of personality could no longer be easily justified, in view of the interest of the person concerned in being reintegrated into society. Referring to the case-law of the Federal Constitutional Court and this Court’s judgment in Österreichischer Rundfunk v. Austria (no. 35841/02, § 68, 7 December 2006), however, the Federal Court of Justice pointed out that even if offenders had served their sentence, they could not claim an absolute right no longer to be confronted with their wrongdoing. The courts were called upon to consider the seriousness of the infringement of the right to personality and the offender’s interest in resocialisation; in that regard, account had to be taken of the way in which the person concerned was presented in the report and, in particular, the extent of its dissemination. 21.     Applying these principles to the case before it, the Federal Court of Justice held that the applicants’ right to protection of their personality should yield to the radio station’s right to freedom of expression and the public’s interest in being informed. It acknowledged that the applicants’ interest in no longer being the subject of reports concerning their crime was considerable, since the crime had been committed a long time previously and they had been released from prison, the first applicant in August 2007 and the second in January 2008. However, in the view of the Federal Court of Justice, in the circumstances of the case the impugned passage from the report of 14 July 2000 did not affect the applicants’ personality rights in a significant manner ( erheblich ), as it was not liable to cause them to be “pilloried for all time” or to draw them into the spotlight ( ins Licht der Öffentlichkeit zerren ) in a way that would stigmatise them again as criminals. 22.     The Federal Court of Justice first noted that the impugned passage gave a truthful account of a murder – of a very popular actor – that had been the focus of public attention. It noted that the passage recounted, with restraint and objectivity, the circumstances of the crime, the applicants’ conviction and the trial. In the view of the Federal Court of Justice, the passage in question did not stigmatise the applicants as the perpetrators of the crime or as murderers, but stated that the two brothers had been convicted of murder after a six-month criminal trial based entirely on circumstantial evidence and that they continued to protest their innocence; this left it open to the reader to conclude that they had been wrongly convicted. The Federal Court of Justice found that there was therefore no doubt that, on the day on which the transcript of the report had been posted on the radio’s website, the identification of the applicants in the radio programme had been justified in view of the seriousness of the crime, the fact that the victim had been well known, the considerable public attention the crime had received and the fact that the applicants had tried after 2000 to have their convictions quashed using all conceivable remedies ( alle denkbaren Rechtsbehelfe ). 23.     The Federal Court of Justice added that the way in which the transcript of the report had been posted on the Deutschlandradio portal had resulted in limited dissemination. In its view, unlike the prime-time television report that had been the subject of a leading judgment by the Federal Constitutional Court of 5 June 1973 (no. 1 BvR 536/72 – the Lebach judgment), the impugned transcript could be found on the Internet portal only by Internet users actively seeking information on the subject in question. It would not have been found on the radio station’s Internet pages devoted to news items that might be immediately obvious to Internet users; the latter would have had to search under the heading “Older news items” ( Altmeldungen ), and the transcript would have been marked as such in a clear and visible manner. 24.     The Federal Court of Justice also pointed out that the public had a legitimate interest not only in being informed about current events, but also in being able to research past events. Hence, in exercising their freedom of expression the media fulfilled their task of informing the public and helping to shape democratic opinion, including when they made older material available to Internet users. This was particularly true in the case of the radio station in question – a legal entity governed by public law – whose mission included the creation of archives. The Federal Court of Justice considered that a blanket prohibition on access or an obligation to delete any reports concerning offenders named in an Internet archive would result in the erasure of history and in wrongly affording full immunity to the perpetrator in that regard. In the view of the Federal Court of Justice, offenders could not claim such a right. 25.     Lastly, the Federal Court of Justice noted that a ban such as that sought by the applicants would have a chilling effect on freedom of expression and freedom of the press: if they were prohibited from making available to Internet users transcripts of old radio programmes whose legality had not been challenged, media outlets such as Deutschlandradio would no longer be able to fulfil their task of informing the public, a task entrusted to them under constitutional law. The resulting obligation for the radio station to regularly check all its archives would unduly restrict its freedom of expression and freedom of the press. In view of the time and personnel that such checks would entail, the Federal Court of Justice found that there was a real risk that Deutschlandradio would cease to archive its reports or would omit information – such as the names of the persons concerned – that might subsequently make such reports unlawful, even though the public had an interest worthy of protection in having access to it. 26.     The Federal Court of Justice added that the principles established by the data-protection legislation led it to the same conclusion. In that connection it observed that the provision of the impugned information fell within the scope of the media privilege enshrined in the second sentence of Article 5 § 1 of the Basic Law. Consequently, the provision of the information on the radio station’s website was not subject to the consent of the person concerned or to express authorisation by law. If they were deprived of the possibility of collecting, processing and using personal data without the consent of the person concerned, neither the press nor radio stations would be able to carry out their work as journalists and would thus be unable to perform the tasks recognised and guaranteed by Article 5 § 1 of the Basic Law, Article 10 § 1 of the Convention and Article 11 of the Charter of Fundamental Rights of the European Union. Those tasks included not only posting reports online, but also ensuring their ongoing availability, notwithstanding the time that had elapsed since the transcript had first been posted (nine years in the present case). The Federal Court of Justice added that the radio station had posted the transcript of the report online solely for journalistic purposes and that it had therefore acted within the remit entrusted to it by constitutional law, namely to inform the public and help shape democratic opinion in the exercise of its freedom of expression. (d)     The Federal Constitutional Court ruling 27.     On 6 July 2010 the Federal Constitutional Court decided not to entertain the constitutional appeals lodged by the applicants, not to grant them legal aid and not to appoint lawyers to represent them. It stated that it was not giving reasons for its decisions (nos. 1 BvR 535/10 and 547/10). 2.     The second set of proceedings (a)     The impugned articles 28.     The Internet portal of the weekly magazine Der Spiegel contained a file entitled “W.S. – hammered to death”. The file included five articles that had appeared between 1991 and 1993 in the print and online editions of the magazine. Access to the file was subject to payment. The articles in the file gave a detailed account of the murder of W.S., his life, the criminal investigation and the evidence gathered by the prosecuting authorities, the criminal trial and, in the case of issue no. 49/1992 of 30 November 1992, certain details of the applicants’ lives, including their full names. The article stated that the second applicant came from a broken ( zerrüttet ) family of six children from a named Bavarian village, that he had been placed in a home at the age of five, where he had learned what it was to be homosexual and, especially, how best to sell himself. It was also reported that he had worked as a hairdresser and a taxi driver before being employed at a petrol station owned by Mrs W., a wealthy childless widow who was a friend of W.S.’s mother and who had adopted him when he was twenty-four years old. As to the first applicant, according to the article he worked for a modest salary in the brewery managed by his half-brother. The article also gave some details provided by the witnesses during their testimony, in particular regarding how the first applicant was viewed by his half-brother. 29.     Two of the articles in the file (published in issues nos. 39/1992 of 21   September and 49/1992 of 30 November 1992) were accompanied by photographs, one showing the two applicants in the courtroom of the criminal court, another showing the first applicant with a prison officer, and a third showing the second applicant with W.S. (b)     The rulings of the Regional Courts and the Court of Appeal 30.     In 2007, on an unspecified date, the applicants made an application for legal aid to the Frankfurt am Main Regional Court with a view to bringing proceedings against the magazine Der Spiegel . 31.     On 4 June 2007 the Frankfurt am Main Regional Court dismissed the application on the grounds that it did not have sufficient prospects of success. 32.     The applicants then brought a similar application before the Hamburg Regional Court, which granted them legal aid. 33.     In two judgments of 18 January 2008 the Hamburg Regional Court granted the applicants’ request and ordered the magazine to put an end to the public’s access to the impugned file in so far as it included photos of the applicants and named them. 34.     On 29 July 2008 the Hamburg Court of Appeal upheld the judgments of the Regional Court on the same grounds as those set out in its other judgments of the same day (see paragraphs 14-16 above). It specified that the applicants had the right to bring proceedings against the magazine in the Regional Court in which their application was most likely to succeed. (c)     The judgments of the Federal Court of Justice 35.     On 9 February 2010 the Federal Court of Justice allowed the appeals on points of law lodged by Der Spiegel (nos. VI ZR 244/08 and 243/08) and dismissed the applicants’ claims. (i)     The reasoning regarding the articles 36.     With regard to the press articles contained in the file at issue, the Federal Court of Justice adopted essentially the same reasoning as in its judgments of 15 December 2009 (see paragraphs 18-26 above). As to the content of the articles in question it observed that, contrary to the applicants’ claims, the articles did not characterise them as murderers in a provocative manner, but stated that the applicants had been accused of murder and that they had been convicted as charged. The Federal Court of Justice added that the articles in question reported on the applicants’ attitude towards the acts of which they were accused and recalled certain circumstances that had not been elucidated; this left it open to readers to conclude that the applicants had been wrongly convicted. As to the extent of dissemination of the reports, the Federal Court of Justice pointed out that consultation of the file was subject to payment, which further restricted its accessibility. It reiterated that offenders were not entitled to obtain a blanket ban on viewing a report concerning named offenders or an obligation to erase such reports. This was especially true in the case of a serious capital crime that had attracted particular public attention. (ii)     The reasoning regarding the photos 37.     On the subject of the impugned photos, the Federal Court of Justice pointed out that it had developed a concept of graduated protection ( abgestuftes Schutzkonzept ) based on sections 22 and 23 of the Copyright Act (see “Domestic law”, paragraph 50 below), which it had clarified following the Court’s judgment in Von Hannover v. Germany (no.   59320/00, ECHR 2004-VI), in response to the reservations of principle which the Court had expressed in that judgment. It observed that, according to that concept of protection, the publication of images of persons who – on account of their importance in contemporary history – were in theory required, under section 23(1)(1) of the Copyright Act, to tolerate the publication of photos of themselves was nevertheless unlawful if the legitimate interests of the person concerned were infringed (section 23(2)). There could be no exception to the obligation to obtain the consent of the person in question unless the report concerned an important event of contemporary history (the court cited Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 29-35, ECHR 2012). 38.     Applying these criteria to the case before it, the Federal Court of Justice noted that the photos showed, firstly, the applicants in the dock in the courtroom of the Regional Court; secondly, the first applicant accompanied by a prison officer; and, finally, the second applicant with W.S. It considered that the photos illustrated the articles and underlined the authenticity of the reports, and that, since they had been taken in the context of the event being reported on (the criminal trial), a fact which generally made their publication lawful, they did not affect the applicants more than a photo showing their profile and taken in a neutral context. The Federal Court of Justice observed that the photos in question did not portray the applicants unfavourably or intrude on their intimate sphere, and that their distribution did not “pillory [the applicants] for all time” or present them to the public in a way that stigmatised them again as criminals. The photos – which dated back to 1992 and showed only the applicants’ appearance as it had been at that time – accompanied articles that were clearly identified as old reports with a limited impact. The Federal Court of Justice concluded that, in view of all the circumstances of the case, the applicants had no legitimate interest, within the meaning of section 23(2) of the Copyright Act, in prohibiting the publication of the photos. (d)     The Federal Constitutional Court ruling 39.     On 6 July 2010 the Federal Constitutional Court decided not to entertain the constitutional appeals lodged by the applicants, not to grant them legal aid and not to appoint lawyers to represent them. It stated that it was not giving reasons for its decisions (nos. 1 BvR 924/10 and 923/10). 3.     The third set of proceedings 40.     In 2007, on an unspecified date, the applicants brought proceedings against the daily newspaper Mannheimer Morgen in the Hamburg Regional Court. On the newspaper’s Internet portal (www.morgenweb.de), under the heading “Older news items”, was a news item dated 22 May 2001 which was available until 2007. Only persons with special access rights, such as subscribers and purchasers of certain other printed media, could access this section. However, all Internet users had access to a “teaser” indicating the subject matter of the items available in that section. The teaser referring to the news item of 22 May 2001 gave the full names of the applicants and read as follows:   “The proceedings against the two convicted murderers of the very popular actor W.S. will not be reopened for the time being. The Augsburg Regional Court reportedly rejected an application for reopening by the brothers W.W. and M.L. They are expected to appeal against that decision to the Munich Court of Appeal.” 41.     In two judgments of 16 November 2007 the Regional Court granted the applicants’ request. 42.     On 19 August 2008 the Hamburg Court of Appeal upheld these judgments on the same grounds as those set out in its judgments of 29 July 2008 (see paragraphs 14-16 above). 43.     On 20 April 2010 the Federal Court of Justice allowed the appeals on points of law lodged by the newspaper (nos. VI ZR 245/08 and 246/08) and dismissed the applicants’ claims on the same grounds as those set out in its judgments of 9 February 2010 (see paragraphs 35-36 above). 44.     On 23 June 2010 the Federal Constitutional Court decided not to entertain the constitutional appeals lodged by the applicants, not to grant them legal aid and not to appoint lawyers to represent them. It stated that it was not giving reasons for its decisions (nos. 1 BvR 1316/10 and 1315/10). 4.     Other proceedings brought by the applicants 45.     The Federal Court of Justice subsequently reaffirmed its case-law in other proceedings instituted by the applicants (nos. VI ZR 345/09 and 347/09 of 1 February 2011, nos. VI ZR 114/09 and 115/09 of 22 February 2011, and no. VI ZR 217/08 of 8 May 2012 concerning the second applicant). In a judgment of 22 February 2011 concerning the second applicant and relating to an article published in the Frankfurter Allgemeine Zeitung daily newspaper on 14 January 2005, the Federal Court of Justice noted that, according to the findings of the Regional Court, the applicant had contacted the Süddeutsche Zeitung daily newspaper in August and November 2004 and requested it to continue reporting on him. The newspaper had responded to the request by publishing an article (containing text and photos) about the second applicant. The Federal Court of Justice concluded that, under these circumstances, the public’s interest in being fully ( umfassend ) informed about the criminal act in question had not weakened or, at least, had resumed in the summer of 2004. This was further demonstrated by the numerous reports regarding the second applicant that could be found until June 2006 on the website of his criminal lawyer. Hence, the applicant had at that time been in the public eye and had not been unlawfully drawn into the spotlight by the publication of the article (no. VI ZR 346/09). II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Domestic law 1.     The Basic Law 46.     The relevant provisions of the Basic Law read as follows: Article 1 § 1 “The dignity of human beings is inviolable. All public authorities shall have a duty to respect and protect it.” Article 2 § 1 “Everyone shall have the right to the free development of his or her personality provided that he or she does not infringe the rights of others or violate the constitutional order or moral law ( Sittengesetz ).” Article 5 §§ 1 and 2 “1.     Everyone shall have the right to freely express and disseminate his or her opinion in speech, writing and images, and to gather information without hindrance from sources accessible to all. Freedom of the press and freedom to provide information through radio, television and cinema shall be guaranteed. There shall be no censorship. 2.     These rights shall be limited by the provisions of general statutes, the statutory provisions on the protection of young people and the right to respect for personal honour ( Recht der persönlichen Ehre ).” 47.     The Federal Court of Justice, in a judgment of 25 May 1954 (no. I ZR 311/53), recognised a general right to protection of personality under Articles 1 § 1 and 2 § 1 of the Basic Law. 2.     The Civil Code 48.     Article 823 § 1 of the Civil Code ( Bürgerliches Gesetzbuch ) states that anyone who, acting intentionally or negligently, unlawfully violates the rights to life, physical integrity, health, liberty, property or similar rights of others is required to afford redress for any damage arising in consequence. 49.     Under Article 1004 § 1 of the Civil Code, where another’s property is damaged otherwise than by removal or illegal retention the owner may require the perpetrator to cease the interference. If there are reasonable fears that further damage will be inflicted, the owner may seek an injunction. 3.     The Copyright (Arts Domain) Act 50.     Section 22(1) of the Copyright (Arts Domain) Act ( Gesetz betreffend das Urheberrecht an Werken der bildenden Künste und der Photographie – Kunsturhebergesetz ) provides that images representing a person may be distributed only with the express permission of the person concerned. The first paragraph of section 23(1) of the Act provides for exceptions to this rule where the images portray an aspect of contemporary history ( Bildnisse aus dem Bereich der Zeitgeschichte ), on condition that publication does not interfere with a legitimate interest ( berechtigtes Interesse ) of the person concerned (section 23(2)). 51.     In a judgment of 30 November 2012 in a case similar to the present one, the Federal Court of Justice reaffirmed its case-law on the subject, adding that the technical possibilities of the Internet did not justify restricting access to original reports on particular events of contemporary history to persons who had access or sought access to traditional archives (no. VI ZR 330/11). A constitutional appeal lodged against that judgment by the person referred to in the archived articles is pending before the Federal Constitutional Court (no. 1 BvR 16/13). B.     Council of Europe texts 1.     Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data 52.     The relevant parts of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data of 28   January 1981 read as follows: Article 1 – Object and purpose “The purpose of this Convention is to secure in the territory of each Party for every individual, whatever his nationality or residence, respect for his rights and fundamental freedoms, and in particular his right to privacy, with regard to automatic processing of personal data relating to him (‘data protection’).” Article 3 – Scope “1.     The Parties undertake to apply this Convention to automated personal data files and automatic processing of personal data in the public and private sectors. ...” Article 5 – Quality of data “Personal data undergoing automatic processing shall be: (a)     obtained and processed fairly and lawfully; (b)     stored for specified and legitimate purposes and not used in a way incompatible with those purposes; (c)     adequate, relevant and not excessive in relation to the purposes for which they are stored; (d)     accurate and, where necessary, kept up to date; (e)     preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored.” Article 6 – Special categories of data “Personal data revealing racial origin, political opinions or religious or other beliefs, as well as personal data concerning health or sexual life, may not be processed automatically unless domestic law provides appropriate safeguards. The same shall apply to personal data relating to criminal convictions.” Article 9 – Exceptions and restrictions “... 2.     Derogation from the provisions of Articles 5, 6 and 8 of this Convention shall be allowed when such derogation is provided for by the law of the Party and constitutes a necessary measure in a democratic society: ... (b)     protecting the data subject or the rights and freedoms of others.” 53.     On 18 May 2018, at its 128th session in Elsinore, the Committee of Ministers adopted a new version of this Convention. The relevant parts of the new Article 9 read as follows: “1.     No exception to the provisions set out in this Chapter shall be allowed except to the provisions of Article 5 paragraph 4, Article 7 paragraph 2, Article 8 paragraph 1 and Article 9, when such an exception is provided for by law,   respects the essence of the fundamental rights and freedoms   and constitutes a necessary and proportionate measure in a democratic society for: a.     the protection of national security ... and other essential objectives of general public interest; b.     the protection of the data subject or the rights and fundamental freedoms of others, notably freedom of expression ...” 2.     Recommendation No. R (2000) 13 of the Committee of Ministers 54.     The relevant parts of Recommendation No. R (2000) 13 of the Committee of Ministers to member States on a European policy on access to archives, adopted on 13 July 2000 at the 717th meeting of the Ministers’ Deputies, are worded as follows: “... Considering that archives constitute an essential and irreplaceable element of culture; Considering that they ensure the survival of human memory; ... Taking account of the complexity of problems concerning access to archives at both national and international level due to the variety of constitutional and legal frameworks, of conflicting requirements of transparency and secrecy, of protection of privacy and access to historical information, all of which are perceived differently by public opinion in each country; ... Recommends that the governments of member states take all necessary measures and steps to: i. adopt legislation on access to archives inspired by the principles outlined in this recommendation, or to bring existing legislation into line with the same principles; ... Appendix to Recommendation No. R (2000) 13 ... III.     Arrangements for access to public archives 5.     Access to public archives is a right. ... 7.     The legislation should provide for: a.     either the opening of   public archives without particular restriction; or b.     a general closure period. 7.1.     Exceptions to this general rule necessary in a democratic society can, if the case arises, be provided to ensure the protection of: ... b.     private individuals against the release of information concerning their private lives. 10.     If the requested archive is not openly accessible for the reasons set out in article 7.1, special permission may be given for access to extracts or with partial blanking. The user shall be informed that only partial access has been granted. IV. Access to private archives 12.     Wherever possible,   mutatis mutandis , attempts should be made to bring arrangements for access to private archives in line with those for public archives.” 3.     Recommendation Rec(2003)13 of the Committee of Ministers 55.     The relevant parts of Recommendation Rec(2003)13 of the Committee of Ministers to member States on the provision of information through the media in relation to criminal proceedings, adopted on 10 July 2003 at the 848th meeting of the Ministers’ Deputies, are worded as follows: “... Recalling that the media have the right to inform the public due to the right of the public to receive information, including information on matters of public concern, under Article 10 of the Convention, and that they have a professional duty to do so; ... Stressing the importance of media reporting in informing the public on criminal proceedings, making the deterrent function of criminal law visible as well as in ensuring public scrutiny of the functioning of the criminal justice system; Considering the possibly conflicting interests protected by Articles 6, 8 and 10 of the Convention and the necessity to balance these rights in view of the facts of every individual case, with due regard to the supervisory role of the European Court of Human Rights in ensuring the observance of the commitments under the Convention; ... Recommends, while acknowledging the diversity of national legal systems concerning criminal procedure, that the governments of member states: 1.     take or reinforce, as the case may be, all measures which they consider necessary with a view to the implementation of the principles appended to this recommendation, within the limits of their respective constitutional provisions, ... Appendix to Recommendation   Rec(2003)13 Principles concerning the provision of information through the media in relation to criminal proceedings Principle 1 - Information of the public via the media The public must be able to receive information about the activities of judicial authorities and police services through the media. Therefore, journalists must be able to freely report and comment on the functioning of the criminal justice system, subject only to the limitations provided for under the following principles. ... Principle 8 - Protection of privacy in the context of on-going criminal proceedings The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.” 4.     Recommendation CM/Rec(2012)3 of the Committee of Ministers 56.     The Recommendation of the Committee of Ministers to member States on the protection of human rights with regard to search engines, adopted on 4 April 2012 at the 1139th meeting of the Ministers’ Deputies, stresses the importance of search engines in facilitating access to Internet content and making the World Wide Web useful to the public. It considers it essential that search engines be free to explore and index information that is openly available on the Web and intended for mass outreach. It notes that the action of search engines can, however, affect freedom of expression and the right to   seek, receive and impart information, and that it also has an impact on the right to private life and the protection of personal data because of the pervasiveness of search engines and their ability to penetrate and index content which, although in the public space, was not intended for mass communication (or mass communication in aggregate). C.     European Union law 1.     Directive 95/46/EC of the European Parliament and of the Council of 24   October 1995 57.     Directive 95/46/EC of the European Parliament and of the Council of 24   October   1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data was designed to protect individuals’ fundamental rights and freedoms (including their right to privacy) in the processing of personal data, while at the same time removing obstacles to the free flow of such data. In Article 9 of the Directive, the member States provided for exemptions and derogations for the processing of personal data solely for journalistic purposes or the purposes of artistic or literary expression. 2.     Regulation (EU) 2016/679 of the European Parliament and of the Council of 27   April 2016 58.     Articles 17 and 85 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (applicable from 25 May 2018) on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, which repealed Directive 95/46/EC (the General Data Protection Regulation), read as follows: Article 17 – Right to erasure (“right to be forgotten”) “1.     The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay where one of the following grounds applies: (a)     the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed; ... 2.     Where the controller has made the personal data public and is obliged pursuant to paragraph   1 to erase the personal data, the controller, taking account of available technology and the cost of implementation, shall take reasonable steps, including technical measures, to inform controllers which are processing the personal data that the data subject has requested the erasure by such controllers of any links to, or copy or replication of, those personal data. 3.     Paragraphs 1 and 2 shall not apply to the extent that processing is necessary: (a)     for exercising the right of freedom of expression and information; ... (d)     for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) in so far as the right referred to in paragraph   1 is likely to render impossible or seriously impair the achievement of the objectives of that processing ...” Article 85 – Processing and freedom of expression and information “1.     Member States shall by law reconcile the right to the protection of personal data pursuant to this Regulation with the right to freedom of expression and information, including processing for journalistic purposes and the purposes of academic, artistic or literary expression. 2.     For processing carried out for journalistic purposes or the purpose of academic artistic or literary expression, Member   States shall provide for exemptions or derogations ... if they are necessary to reconcile the right to the protection of personal data with the freedom of expression and information.” 3.     The judgment of the Court of Justice of the European Union of 13   May 2014 (Google Spain and Google) 59.     In its judgment of 13 May 2014 (Case C-131/12, EU:C:2014:317; Google Spain SL and Google Inc. – hereafter “ Google Spain ”), the Court of Justice of the European Union (“the CJEU”) was called upon to define the extent of the rights and obligations arising out of Directive 95/46/EC. The case originated in a complaint lodged by a Spanish national with the Spanish Data Protection Agency against a Spanish daily newspaper and Goog