UK Publishers at Risk From ‘Right To Be Forgotten’

A European Court judgment has extended the “right to be forgotten” from search engines to news websites, which could impact on UK publishers.

The “right to be forgotten” allows people to ask that any dated information online can be removed on request from online search results. Currently the law extends to search engines such as Google, meaning they can be bound to remove reports of historic crimes, containing named individuals, from search results.

Last month a Belgian-French newspaper Le Soir appealed against a right to be forgotten judgment, which the European Court of Human Rights rejected, ordering them to anonymise the name of a driver responsible for a deadly car accident in 1994. The UK remains a part of the ECHR.

ECHR ruled that, as the driver had since served his sentence and had re-entered society, keeping the article online would leave a “virtual criminal record”.

Speaking to Press Gazette, barrister Greg Callus said: “Just because the Strasbourg Court said this was an acceptable balance under Belgian law, it does not mean that English law strikes – or would strike – the same balance, or that the Strasbourg Court would require it to do so.

“If an English criminal sought to anonymise newspaper articles from years ago about his conviction as no longer relevant, and the English courts refused relief, the Strasbourg Court might well uphold that decision.

“UK publishers will need to have regard to this decision if they get post-publication requests to remove names or identifying information from old articles (and the Strasbourg Court was clear they only had to consider historic articles upon receiving requests – there isn’t an obligation to keep monitoring the archives).

“Such requests can no longer be considered just through the lens of data protection (where the UK journalism exemption is very broad) and need to be considered through the prism of Convention Rights.”

Reed Smith LLP partner Carolyn Pepper also commented: “It is not yet clear what approach the UK courts will take to the right to be forgotten post-Brexit but the UK courts must still take into account decisions of the European Court of Human Rights and so UK publishers do need to give careful consideration to the European Court of Human Rights’ decision which strengthens the right to be forgotten.

“The Court’s decision was that the right to freedom of expression did not in this case trump the individual’s right to be forgotten under Belgian law (as opposed to UK law) but this decision does emphasise that it will not always be an answer to a case brought under privacy laws to argue that the right to freedom of expression of publishers should prevail.

UK publishers also have to take into account the UK GDPR which provides for a right to erasure in certain circumstances.”