VSRS - II Ips 23/2020

VSRS - II Ips 23/2020
Court:	VSRS (Slovenia)
Jurisdiction:	Slovenia
Relevant Law:	Article 17 GDPR
Decided:	28.08.2020
Published:
Parties:
National Case Number/Name:	II Ips 23/2020
European Case Law Identifier:	ECLI:SI:VSRS:2020:II.IPS.23.2020
Appeal from:	VSM (Slovenia) VSM Sodba I Cp 374/2019
Appeal to:
Original Language(s):	Slovenian
Original Source:	Sodna praksa (in Slovenian)
Initial Contributor:	Sara Horvat

A former Candidate for a Judge at the ECHR has claimed his Right to be forgotten. The Court decided that in relation to this event he will always be a relative person of public interest and that the movement to an payable Archive is almost like an erasure.

English Summary

Facts

The plaintiff was a former Candidate for a position as a Judge at the European Court of Human Rights in 2014. During this process the defendant (a national media house) published articles on its website stating that the plaintiff had been sentenced to one year and six months imprisonment for domestic violence. The plaintiff (applicant) alleged a violation of the right to privacy for maintaining sensitive personal data on the defendant's website even after the call for judges of the European Court of Human Rights had been closed and the articles were no longer relevant.

The Court of first Instance has balanced in it´s decision the collision of protected rights - the plaintiff´s personality rights and the right to privacy on the one side, and the defendant´s freedom of expression, on the other. The Court of Appeal (Višje sodišče v Mariboru) upheld the findings of the Court of First Instance.

Therefore, the plaintiff filed a revision (partial renewal of a res judicata judgement) in the part of the decision of the court of appeals regarding the question if a person which was in the past a “relative public figure” loses its status as a “relative public figure” after certain time passes and there is no more interest of the public for that person.

Holding

The Court held, that a former Candidate for the position of a Judge at the European Court of Human Rights (ECHR) is a “relative public person” or “relative public figure”. When someone becomes a “relative public person”, his field of expected privacy, becomes smaller - in inverse proportion, the more public the function, the more restrictive its privacy rights. The person will be forever in a way a person of public interest regarding the event which made the public interest about him increase.

Another question is whether he is entitled to general anonymity and protection of personal data after the event. The answer to this question is not straightforward and depends on the circumstances of each case, in particular the importance of the event itself, the person's role in public life and his or her conduct and public appearance otherwise, the public's interest in accessing the information within a certain period of time after the event, the content and form of the publication.

If an article is moved from the public accessible Homepage, to an Archive, which is accessible upon payable Subscription, such a movement actually makes the information publicly disappear. This has in relation to the general public, the same effect as an erasure (Article 17 GDPR).

It would be excessive and contrary to the mission of the media to require them to check the relevance of their past publications on an ongoing, daily basis, but they are obliged to do so at the request of the persons entitled to do so, and to take appropriate action if necessary at that time.

Comment

This case is similar as the case in the decision of the German Federal Consitutional Court BVerfG - 1 BvR 16/13. The Court in this case also decided that the movement to an Archive is similar to an erasure.

Further Resources

Share blogs or news articles here!

English Machine Translation of the Decision

The decision below is a machine translation of the Slovenian original. Please refer to the Slovenian original for more details.

Supreme Court
Civil Division

VSRS Judgment II Ips 23/2020
ECLI: SI: VSRS: 2020: II.IPS.23.2020
Registration number: VS00037560
Date of decision: 28.08.2020
Reference number II level: VSM Judgment I Cp 374/2019
Date of the decision of the second instance: 11.06.2019
Senate: mag. Rudi Štravs (president), Karmen Iglič Stroligo (report), mag. Nina Betetto, Ph.D. Ana Božič Penko, Tomaž Pavčnik
Subject matter: CIVIL PROCEDURAL LAW - COMPENSATION LAW - PERSONAL RIGHTS - EUROPEAN UNION LAW - CONSTITUTIONAL LAW
Institute: audit - legal interest in audit - compensation for non-pecuniary damage - protection of personal data - conflict of constitutional rights - right to privacy - right to privacy - right to freedom of expression - relative public figure - passage of time - loss of property - publication on the World Wide Web - withdrawal - deletion of data - right to be forgotten - case law of the ECJ - judgment of the ECtHR - admissible revision
Sail

The right to forget refers to the right of a person to request the deletion of certain personal data or information on the basis of which it can be identified. The effect of withdrawing articles to a restricted archive is almost the same as deleting them, as such a technical measure may exclude the right to inform a significant part of random Internet users and current news seekers. There must therefore be good reasons for such a restriction on freedom of expression and information.

An individual does not lose the status of a public person after the expiration of the event that caused him to be a relative public figure. He will always maintain such a status in connection with this event. He cannot rule out participation in the event retrospectively. The second question is whether he is entitled to anonymity and protection of personal data after the event. The answer is ambiguous and depends on the circumstances of the case, especially the significance of the event, the role of the person in public life and his behavior and public appearance, public interest in accessing information at a certain time after the event, content and form of publication.

It would be an exaggeration and contrary to the mission of the media to check the topicality of their past publications on a daily basis, but they are obliged to do so at the request of the entitled person and then take appropriate action if necessary.
The dictum

I. The audit is rejected.

II. Within 15 days of service of this judgment, the applicant must reimburse the defendant for its review costs in the amount of EUR 671.98, with statutory default interest due after the expiry of the time-limit for compliance with the obligation laid down in this operative part.
Justification

1. The Court of First Instance dismissed the primary and two subordinate cumulative claims seeking damages from the defendant for non-pecuniary damage.

2. The Court of First Instance dismissed the applicant's appeal and upheld the judgment of the Court of First Instance.

3. By decision II DoR 434/2019 of 19 December 2019, the Supreme Court, at the request of the plaintiff, allowed a revision on the question: Does an individual lose the status of a public person and be entitled to anonymity after the event due to which he was a relative public figure and protection of personal data.

4. The applicant then lodged an appeal on a point of law against the judgment given at second instance, 'in order to establish the grounds of a material breach of the provisions of civil procedure in the context of the above question'. He proposed that the Supreme Court annul the impugned judgment and the judgment of the court of first instance and grant the "original" claim, or return the case to the court of first instance for a new trial.

5. Pursuant to Article 375 of the Civil Procedure Act (hereinafter ZPP), the revision was served on the defendant, who in her reply proposed that the Supreme Court reject the revision as unauthorized and, in the alternative, reject it as unfounded.

The factual and legal context of the dispute

6. On 5 August 2014 and 14 August 2014, the defendant published in its online newspaper a newspaper article regarding the application of candidates for the Ministry of Justice's vacancy for the position of judge at the European Court of Human Rights (hereinafter ECtHR). . In them, she stated that the plaintiff was sentenced to a year and a half in prison for the crime of domestic violence. The first article was available to subscribers, and the second was publicly available until August 2, 2017, when it was transferred to the archive. The content of the articles was real, the writings did not move to the personal level, and their purpose was to inform the public about the suitability of the candidates. The process of selecting a judge was completed on 19 April 2016.

7. The plaintiff claimed in his lawsuit that the defendant acted unlawfully because he allowed the article on the website to be freely accessible even after the vacancy for the position of judge at the ECtHR was annulled and a new vacancy was published on 30 October 2014. The information was no longer in the public interest at the time, so the article should be removed from a publicly accessible website. By failing to do so, she violated his personal rights, in particular his right to privacy. In his lawsuit, the plaintiff demanded that the defendant pay him compensation for mental pain due to a reduction in life activity (EUR 3,000.00) and due to the violation of personal rights (EUR 10.00 per day1).

Grounds of the courts of first and second instance

8. In the conflict between the right to privacy and the right to freedom of expression, the Court of First Instance favored the latter. It wrote that the public has the right to be informed about a person who is politically and economically active in society, so the personal right of that person must be relinquished to the legally legitimate public interest. With the candidacy for ECtHR judge, the plaintiff became more recognizable to the public, and public awareness of the criminal judgment helped to gain insight into the plaintiff's mentality and morality as a candidate for a high sociopolitical position, for which a high level of moral integrity and trust is important. With his conviction, albeit unenforceable, and the candidacy for ECtHR judge, the plaintiff became a relatively public figure, and also performs the function of a higher education lecturer, ie an academic who performs his function publicly, which makes his field of expected privacy narrower. The plaintiff applied for the tenders in October and December 2014 and August 2015, which further indicates the unjustified request to remove articles from the website until the re-tender on 30 October 2014, as the public interest in information did not cease on that day. The Court concludes that there is no legal basis for requiring the defendant to withdraw a legally published professional article within a certain period of time, which contains true and objective statements and facts about the plaintiff as a relatively public person.

9. The Court of First Instance assessed as correct the reasons given by the Court of First Instance for the conflict between the right to freedom of expression and the right to privacy and the protection of honor and reputation, and used the criteria established by the ECtHR v. Germany and Axel Springer AG v. Germany. Freedom of (journalistic) expression also realizes the democratic right of the public to be informed about matters of public interest, so any restrictions on it should be carefully considered, especially when it comes to reporting on topics of general public interest in information. Someone who is at some point a relatively public figure cannot, by ceasing to perform this trait, lose and completely withdraw completely into privacy. It confirmed that there was no legal basis for requiring the defendant to withdraw a legally published article from the field of public access within a certain period of time, where it is accessible only against payment. Nor is it a choice between less and milder measures, as the article is in any case available to the interested public. The responsibilities and tasks of journalists are not so far-reaching that they should be instructed to delete or transfer articles from public archives to public archives, even if they infringe on the personal rights of victims, taking into account the principle of proportionality. This would mean inadmissible censorship and interference with publications.

Statements of the parties to the review process

10. The revision is in fact a copy of the proposal for its admission. Therefore, the plaintiff reiterates in it all the issues on which he proposed to allow a review2. Since the Supreme Court examines the impugned judgment only in that part and on those specific issues on which revision was allowed (Article 371 ZPP), the Supreme Court further summarizes only those essential allegations of revision that relate to the admissible issue to which ( the only one) will answer.

11. The plaintiff insists that by keeping his sensitive personal data on a freely accessible website even after the event has ended and the information is out of date, the defendant has infringed his right to privacy. The right to privacy is a fundamental human right guaranteed to an individual by the Constitution in Article 35. An extremely important area of protection of the right to privacy is information privacy, which also includes the protection of personal data, which is guaranteed to the individual by the Constitution in Article 38. The media expert is required to monitor the topicality of events and to properly select information that is current and which is not and is therefore "ripe" for the archive. A media outlet that earns millions in profits a year can be expected to be professional and active in its work. The plaintiff further states that no clear conception of a public person has been formed in case law so far. A relative public person is an individual who, in connection with a public event, is under justified public scrutiny. A public person is only in connection with a public event. A public event is transient and a relative public person loses the status of a public person after the termination of that event. The public's interest in information then no longer outweighs the individual's interest in privacy and the disclosure of his (sensitive) information. The personal data of an individual in connection with the event are no longer in the public interest so that the media can keep them freely available. After the public event, the individual has the right to anonymity, privacy and the right to start again. The courts deny this logic, and the High Court even argues that a person who has been a relative public figure in connection with a public event never ceases to be a public figure and cannot cease to be a public figure by ceasing to appear in public. completely withdrawn completely to privacy. The High Court mentions the case of Von Hannover v. Germany, but at the same time deliberately omits the key effect of the ECtHR's decision, namely that public persons (even absolutely public persons) have the right to privacy. The Supreme Court has repeatedly emphasized the importance of the right to privacy (II Ips 460/97), and due to its violation the defendant is liable for damages (Legal opinion of the Supreme Court of the Republic of Slovenia, adopted at the general session of the Supreme Court of the Republic of Slovenia on 16 June 1998). In view of the fact that the event in respect of which the defendant published the personal data of the plaintiff is no longer relevant and thus the information about the plaintiff is no longer relevant, the defendant would not suffer any damage if he withdrew the disputed publications to his archives. The big difference is if the information is available on a freely accessible website or if it is in the archive. For the archive, the media require special registration or even payment, which the High Court does not distinguish at all. From the point of view of invasion of privacy, this is a much milder encroachment. However, it is true that an obsolete publication in the archive would also be available to an interested person when it shows a legal interest or, according to the rules of the media, could browse online publications in the archive. This would also satisfy the test of proportionality and balance between the freedom of expression of the media and the right to privacy of the individual, and would in no way be a form of censorship.

12. In its reply to the review, the defendant states that the answer to the admissible audit question does not change the plaintiff's position in the litigation in any way, so that the plaintiff has no legal interest in the review and should be rejected. Namely, the plaintiff was a relatively public person at the time of publishing the article, the event was current, the call for a judge at the ECtHR was ongoing and the plaintiff's candidacy for this position was active. However, the defendant points out that, in substantively similar cases, the ECtHR and the Court of Justice of the European Union ('the CJEU') have already formulated positions which give rise to grounds for a negative answer to the admissible question. He cites the cases of the ECtHR Węgrzynowski and Smolczevski v. Poland and M. L. and W. W. v. Germany, and the case of SEU Camera di commercio, Industria, Artigianato e Agricoltura di Lecce v Salvatore Manni. The article contains true, objective, verified facts about the plaintiff. The plaintiff does not challenge the legality of the publication, but the fact that the publication is still recorded in the newspaper archives.

Decision of the Supreme Court

13. The audit is not substantiated.

On the plaintiff's legal interest in the revision

14. The defendant unjustifiably denies the plaintiff a legal interest in the review. The plaintiff's argument is that the defendant excessively infringed on his personal rights (especially the right to privacy) because he allowed free access to his website (online newspaper), on which two articles with the plaintiff's personal data were published, for which after at some point there was no longer a legitimate public interest. If the contribution were withdrawn from a publicly accessible site in an archive accessible to a narrow circle of persons (eg subscribers) or if certain conditions are met (eg payment), the interference with his rights would be smaller and consistent with the proportionality test. At the principle level, it seems that the invasion of privacy is less (milder) if the contributions from the publicly accessible website are withdrawn to the archive of contributions, but access to these contributions and data in them requires additional effort or fulfillment of certain conditions or requirements , while for the right in conflict (freedom of expression) at the same time this would mean less restrictive restriction or less restrictive interference with it than the deletion of the contribution would mean. The plaintiff sees the illegality of the defendant's conduct in the failure to (timely) withdraw publicly available online articles in the public limited archive after the moment when he ceased to be a relative public figure. The answer to the admissible audit question will therefore either confirm or deny the correctness of the plaintiff's thesis on the illegality of the defendant's conduct and consequently her liability for damages due to (excessive and therefore inadmissible) interference with his personal rights. The plaintiff therefore has a legal interest in the revision.

About the right to be forgotten

15. The plaintiff expressly alleges only material breaches of the provisions of civil procedure within the admissible question, but the substantive criticism of the judgment under appeal is substantive, stating the reasons why his right to privacy and protection of personal data is excessively infringed, invoking the right to forgetfulness (though he does not call it that). The right to forget refers to the right of a person to request the deletion of certain personal data or information on the basis of which it can be identified. The plaintiff does not claim that the defendant should have deleted the contributions containing his personal data, but (only) moved them from publicly available data to a limited accessible data archive. As noted, the plaintiff appears to be right in claiming that this is a milder measure than the erasure of data. The effect of withdrawing articles to the archive is that it can no longer be freely accessed, but only through access to the archive, which usually requires overcoming certain barriers set by the website operator and which the plaintiff cites as accessibility only to subscribers and accessibility against payment, and registration requirements related to obtaining a specific password can also be found on the Internet. In any case, these are barriers that discourage a good part of the public from continuing to access archived data. Therefore, the Supreme Court agrees that the effect of withdrawing articles to the archive is almost the same as deletion and that such a technical measure may exclude the right to inform a significant part of random Internet users and news seekers.3 Due to the development of information technologies, more and more media , which exist only as online media and therefore provide information only on their websites. Just as journalistic expression is not limited to the print media, the public's need for information and information available online at all times and backwards far exceeds the print media and is only growing with the further development of technology. There must therefore be good reasons for such a restriction on freedom of expression and information, as the applicant claims.

16. The plaintiff therefore seeks compensation for the defendant's violation of his right to forget or excessive interference with his right to privacy and protection of personal data. The right to forget in Article 17 is explicitly regulated by Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46 / EC hereinafter referred to as the General Data Protection Regulation). This Regulation shall apply from 25 May 2018. Prior to that (and the alleged conduct of the defendant refers to the time before), the matter was governed (repealed by the General Data Protection Regulation) 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 (hereinafter Directive 95/46), and the right to forget is also protected under Article 7 (respect for private and family life) and Article (protection of personal data) of the Charter of Fundamental Rights of the European Union, Article 8 of the European Convention on Human Rights (right to respect for private and family life) and Article 35 of the Constitution (protection of privacy and personal rights), as well as Article 38 of the Constitution as one of the aspects of privacy (protection of personal data or information privacy). The right to be forgotten is therefore constitutionally protected under the right to privacy, despite the fact that it is explicitly regulated only by the General Data Protection Regulation and that its importance has been emphasized only since the ECJ judgment in Google Spain.4

17. The right to privacy is not unlimited. It most often collides with the right to free expression. Neither constitutional nor judicial practice gives absolute significance. Conflict between them at the horizontal level (third paragraph of Article 15 of the Constitution) is resolved by value weighing the meaning of rights in conflict, taking into account the relevant circumstances in each case and the severity of the intervention, and thus determine the rule priority and which and to what extent it must be withdrawn in order to protect another constitutionally protected right (so-called weighing according to the principle of practical concordance) .5, 6 The right to forget as a special (narrower) aspect of the right to privacy and can only be enforced at her expense. Even in the present case, when the plaintiff's interest (his right to be forgotten) contradicts the defendant's (freedom of expression or freedom of press and journalistic expression), the conflict must be resolved by weighing competing interests or confronting reasonable arguments for or against the supremacy of this or that principle. , values, definitions.7 The basic criteria for weighing and resolving the conflict between the right to privacy and freedom of expression were developed by the ECtHR in Von Hannover v. Germany and Axel Springer v. Germany. These criteria, which are also correctly summarized by the court of second instance, 8 are: 1.) contribution to the debate in the general interest; 2.) the position of the person to whom the publication relates and the subject of the publication; 3.) the prior conduct of the person to whom the publication relates; 4.) method of obtaining information and its reality; 5.) content and consequences of publication; 6.) the severity of the sanctions imposed. As the right to be forgotten falls within the scope of the right to privacy, all these criteria are also relevant for resolving its conflict with freedom of expression, as well as additional on the one hand, and the interest of the public to dispose of this information even after a certain period of time has elapsed in which the information (the event to which it relates) has been up to date. There is no case law of the Supreme Court on this issue yet, but certain guidelines regarding the balancing of these rights have already been given by the CJEU and the ECtHR.

The practice of the CJEU and the ECtHR

18. In the absence of domestic case law, the Supreme Court briefly summarizes some of the most important positions of the CJEU and the ECtHR regarding the right to be forgotten.

19. Of particular importance for understanding the right to be forgotten is the judgment of the Court of Justice in Google Spain.9 The Court has recognized the right of individuals to respect the right to privacy and the protection of personal data from webmasters. a list of search results by his name and surname, even in cases where publication on these web (source) pages is legal. In principle, the rights of the individual take precedence not only over the economic interest of the search engine operator, but also over the public interest in accessing certain information through a search based on his name, unless for specific reasons such as the individual's role in public life. justified by the overriding public interest in having access to certain information through this inclusion. In its judgment, the CJEU emphasized that the processing of personal data carried out in the context of search engine activities differs from, and complements, the processing carried out by website publishers to enter such data on the website.10 It allowed the possibility that the processing of data by the publisher of a website and the publication of information about a particular person is carried out solely for journalistic purposes and is therefore exempt from the requirements of Directive 95/46 (on the basis of its 9. Article), while this does not apply to processing performed by the search engine operator. It is therefore possible that an individual may exercise certain rights against the operator but not the publisher of the website.11 Search engine activity may involve more serious encroachment on fundamental privacy rights than publication by the website publisher.12 Even originally lawful processing of accurate data however, it may eventually become incompatible with the requirements of Directive 95/46 if that information is no longer necessary for the purposes for which it was collected or processed, inter alia if it is inappropriate, inappropriate or no longer relevant or excessive in relation to the purposes and time elapsed. .13

20. In Case C-136/17 GC, AF, BH, ED v Commission nationalale de l'informatique et des libertés, with the participation of the Prime Minister, Google LLC of 24 September 201914, the CJEU clarified that personal data with regard to "misdemeanors" and "criminal convictions", they also include information relating to legal proceedings against a natural person, such as information relating to an indictment or trial and a possible conviction, whether or not it has been the subject of legal proceedings. the crime for which the person was prosecuted has actually been established. The search engine operator must grant a request to remove links to websites that contain such information when it relates to a previous stage of legal proceedings and no longer corresponds to the current situation, given the circumstances of the individual's fundamental rights to privacy and the protection of personal data prevails over the rights of potentially interested Internet users, which are protected under freedom of expression and information. In order to assess the fair balance between rights, the CJEU referred to the case law of the ECtHR, according to which the public has not only an interest in being informed about a current event, but also in being able to conduct searches on past events. procedures are variable and may change over time depending on the circumstances of the case. Therefore, in the context of a request to remove links to websites where information relating to criminal proceedings against a particular person is published, which relates to the previous stage of the proceedings and no longer corresponds to the current situation, the search engine operator should consider the circumstances of the case (in particular the nature and seriousness of the criminal conduct, the course and outcome of the proceedings, the time elapsed, the role of the person in public life and his past behavior, the public interest at the time of the request, the content and form of publication). at this stage, they will no longer be associated with her name via the hit list that appears after a search based on her name. However, if the inclusion of a link is strictly necessary to reconcile a person's rights to privacy and personal data protection with the freedom of information of potentially interested Internet users, the search engine operator must adjust the list of hits to the general picture for the Internet user, reflects the current state of litigation.15

21. In this judgment, the ECJ refers to the decision of the ECtHR in M. L. and W. W. v. Germany of 28 June 2018.16 The ECtHR constantly emphasizes the crucial role of the press in a democratic society, which includes reporting and debating court proceedings. an important role in maintaining and accessing online archives. The media, through the creation of online archives and public access to older articles, contribute to the formation of democratic opinions and enable the discussion of matters of public interest. The legitimate public interest in accessing online media archives is protected in the context of freedom of expression, and there must be very serious reasons for any measures that would restrict access to them.17 It warned of the danger of a chilling effect if media required that their contributions no longer contain certain personal data after a certain period of time, or that articles containing such data would become inadmissible after a certain period of time. The obligation to subsequently (subsequently, after a certain period of time) verify the admissibility of articles could result in the press abandoning their retention in the archives or omitting personal data in the articles that could become controversial or should be subsequently removed. . Freedom of expression also protects the choice of reporting method and individual characteristics (such as the full name and surname of the person) to be included in the contribution in order to be credible - of course taking into account all professional and ethical standards.18

22. Similarly, the ECtHR had previously ruled in Węgrzynowski and Smolczewski v. Poland on 16 October 2013.19 It emphasized the great importance of online archives in preserving and accessing news and information. Online archives are an important source for education, historical research, especially if they are immediately publicly available and generally free of charge. The primary function of the press in a democratic society is to act as a 'watchdog', and it also plays an important role in maintaining online archives and providing public access to news published in the past.20 The ECtHR confirmed to Polish courts that courts do not they may change histories by ordering the complete deletion of articles, even if they constitute an unlawful attack on the honor and reputation of individuals. The legitimate public interest in access to public online media archives is protected by Article 10 of the ECHR (freedom of speech), and the complainant could achieve protection of her rights in a different way, e.g. by requesting that the article on the website be accompanied by information on the outcome of the litigation for breach of honor and reputation. 21

23. In its response to the review, the defendant also refers to Case C-398/15 in Case C-398/15 Camera di Commercio, Industria, Artigianato e Agricoltura di Lecce v Salvatore Manni of 9 March 2017. publication of the data contained in the register of companies after the expiration of a certain period of time from the cessation of the company's activities. It ruled that individuals should not be guaranteed the right to have the personal data relating to them deleted or entered in the register deleted or to be blocked from the public after a certain period of time since the winding up. This does not mean disproportionate interference with the fundamental rights of individuals, in particular the right to respect for private life and the right to the protection of personal data. Namely, only a limited amount of personal data is published in the register23, and publication is prescribed mainly because joint stock companies and limited liability companies offer their assets to third parties as the only guarantee, which means greater economic risk for them. Given this risk, it is justified that individuals who choose to engage in economic exchange through such a company are obliged to publish information about their identity and functions in society, especially since they are aware of these obligations when they decide to do so. activity. The need to protect the interests of third parties vis-à-vis public limited liability companies and limited liability companies, to ensure legal certainty, fair business transactions and the proper functioning of the internal market must therefore prevail in balancing. Nevertheless, it cannot be ruled out that there may be special situations in which, for legitimate and urgent reasons related to a particular case of a particular person, it is exceptionally justified that access to personal data concerning him or her is entered in the register, when sufficient time has elapsed since the dissolution of the company, limited to third parties who show a special interest in accessing this information.24

Assessment of a specific case

24. The case-law of the ECtHR and the CJEU therefore confirms that, in any event, the specific circumstances of the case must be taken into account and, in weighing the positions of both parties, it must be determined which rights and to what extent to give priority.25

- The conflict between the individual's right to privacy and the protection of personal data and the media's right to freedom of expression are in conflict. In this context, the right of the latter is of particular importance in a democratic society and includes the right of the public to be informed26; in weighing the conflict between this right and other human rights, the practice of the courts therefore gives particular freedom to freedom of expression, especially when it comes to journalistic reporting, and special care must be taken to ensure that there are good reasons for restricting it.27

- Plaintiff had plaintiff status. relative public figures. A relative public figure is one who is of interest to the public in relation to a particular event. In the case of such a person, it is permissible to describe and publish, without his or her consent, in particular what is important for the character, actions and opinions of these persons in relation to their public activities. However, even these persons are not allowed to publish things from their intimate life without their consent.28 29 The degree of privacy and the admissibility of interference with it therefore depends (also) on the individual's role in social life. The plaintiff was not a relative only because he was running for the position (s) of the ECtHR. According to the Court of First Instance, 30 the plaintiff is a higher education lecturer, an academic who performs his function in public, entered the wider social scene with a candidacy for ECtHR judge, and became a relatively public figure with a conviction, although not final. Such a conclusion is in line with the view that it is also in the public interest to report on negative phenomena in society, criminal offenses and other harmful practices; all the more so if they also concern otherwise well-known (relatively public) persons.

- In view of the plaintiff's position in society and in view of the high professional position, reputation and virtues which a judge of the ECtHR must fulfill, 31 the published article was undoubtedly in the public interest. The public is interested and has the right to be informed about the person who will hold the position of judge at the International Court of Justice, his / her suitability and fulfillment of the tender conditions for a judge of the ECtHR.

- The information published was true and objective. The reporting was correct and did not move to the personal level. The plaintiff did not claim that the media obtained the information in an illegal manner.

25. As the courts of first and second instance correctly explained, all the above circumstances tip the scales in favor of freedom of expression. The only reason the plaintiff cites in favor of the right to forget (in the form of restricting access to information about oneself) is the passage of time. This element can also be decisive in certain cases, 32 and in the plaintiff's view the mere termination of the event in respect of which he became a relatively public figure is sufficient. The Supreme Court cannot uphold such a (simplified) position. It is true that the topicality of information changes over time and thus the extent of public interest in this information, but at least for a certain period after the event or after the publication there is undoubtedly public interest in previously published information. Of course, there is no unambiguous answer as to how long the information is up-to-date or how long it should be available to the public, or whether information about an individual has a “shelf life” 33. The very end of the event (in this case, the election of an ECtHR judge is supposed to mean this as a deadline) is certainly not (yet) the case. 13161 of 24 June 2016, in which, based on the passage of time as a key element for assessing the conflict between the right to privacy and freedom of expression, granted the request to withdraw the contribution, which was published two and a half years ago. The decision was criticized for giving too much weight to the time aspect, but not to the topicality of the topic, which may be long after the first publication for the general public (whose right to be informed with the latest and older information is protected by freedom of expression, public awareness of such information is important not only from a historical-archival perspective, but also from the point of view of forming an informed public opinion on a topic that is still important for the public today) .35

26. The Supreme Court agrees that the passage of time is not and cannot be the only relevant criterion for exercising the right to forget. 'On the other hand, it agrees that' it is not enough that the publication of information was initially justified, but that the dissemination of information must also be justified at any time when the information is available. This means, however, that previous permissible dissemination of information may become inadmissible over time and vice versa. '36 A fair balance must therefore be struck between the right to respect for private life and the public's right to freedom of information, democratic society and which includes the editing of reports and comments on court proceedings. The task of the media to provide such information and ideas is accompanied by the public's right to receive them. The public is not only interested in being informed about a current event, but also in being able to conduct searches for past events.37 Freedom of expression also protects the right of the media to provide the public with access to their online archives. Taking into account all the circumstances of the case, presented in more detail in point 24 of the reasoning, the Supreme Court finds that the plaintiff cannot exercise the right to forgetfulness with the course of the event. Who will be the Slovenian representative at the ECtHR as an international tribunal whose basic task is to ensure that the member states of the Council of Europe respect and ensure respect for human rights and fundamental freedoms stemming from the ECHR and its Protocols is a topic that is not only relevant at the time when the competition for the election of a judge is underway or until a judge is elected. Given the important function and status of the ECtHR judge, the public has an interest in information about the candidates for this position (and their suitability) even after the procedures have been completed, and access to information is (and probably will be) important in advance in subsequent calls for comparative and historical reasons. The Supreme Court therefore considers that the exercise of the right to forget in the present case is not an appropriate means of protecting the plaintiff's right to privacy, but that the plaintiff, as in the cases before the CJEU and the ECtHR, 38 the expiration of the criminal proceedings, as contained in the otherwise substantively correct contribution.

27. The answer to the permissible audit question is that an individual does not lose the status of a public figure after the end of the event that led to him being a relative public figure. In relation to this event, the individual will always maintain the status as correctly recorded by the court of second instance.39 Participation in the event simply cannot be ruled out retrospectively. The second is the question of whether an individual is entitled to anonymity and protection of personal data after the event. The answer is ambiguous and depends on the circumstances of the case, especially the significance of the event, the role of the person in public life and his behavior and public appearance, public interest in accessing information at a certain time after the event, content and form of publication. All these criteria have already been clarified by the Supreme Court and, as it has already explained, it considers that the defendant did not unlawfully encroach on the plaintiff's right to privacy by not withdrawing publicly available contributions with the plaintiff's personal data to the restricted public online archive of contributions. and protection of personal data. However, although not entirely permissible, he adds that the plaintiff is also wrong to believe that the defendant, as a "media expert", should monitor the current events and properly select information that is current and not, and therefore "mature". for the archive. It would be an exaggeration and contrary to the mission of the media to check the actuality of their past publications on a daily basis, but they are obliged to do so at the request of the entitled person and then take appropriate action if necessary.40

28. The Court of Auditors thus found that the audit was unfounded, as the reasons for it were not given. Pursuant to Article 378 of the ZPP, it therefore rejected it.

29. The decision on the costs of the review procedure is based on the provision of the first paragraph of Article 165 in connection with Articles 154 and 155 of the ZPP. Since the plaintiff failed in the audit, the defendant must reimburse its audit profession, which consists of the cost of compiling the response to the audit (900 points at the attorney's fee), 2% material costs and VAT.

30. The Supreme Court ruled in the Chamber mentioned in the introduction to the decision. The decision was adopted unanimously (seventh paragraph of Article 324 of the ZPP).

-------------------------------
1 Subsequent subordinate claims differ from the primary claim only in amount due to differing assessments of the relevant time until which the defendant should allow the article to be made publicly available for the ECtHR). It is therefore only an apparent cumulation, as the subordinate claims are in fact included in the primary or are contained in it.
2 The plaintiff proposed to allow a review of the following issues: (3) Does Article 134 of the Code of Obligations constitute the legal basis on the basis of which an individual may request that the defendant withdraw otherwise within a certain period of time? legally published article from a publicly accessible website in the archive?
3 Maja Ovčak Kos, Current Issues of Exercising the Right to Oblivion, Liber amicorum Anton Gašper Frantar, Supreme Court of the Republic of Slovenia, 2020, page 259.Jasna Zakonjšek, Problems with Oblivion, Annex to Legal Practice, no. 47/2019, page V.
4 Judgment C-131/12, Google Spain SL and Google Inc. v. Agencia Esapañola de Protección de Datos (AEPD) and Mario Costeja González of 13 May 2014.
5 Jan Zobec, Practical Concordance in Constitutional Judicial Review, Judicial Bulletin 2/2011.
6 The applicant's view that the courts of first and second instance should have passed the proportionality test is therefore incorrect. As the revision was not abandoned on this issue (see footnote 2), the Supreme Court only clarifies that this test binds state authorities in encroaching on human rights and fundamental freedoms, while in the present case it is a conflict of coexisting rights.
7 Jan Zobec, Practical Concordance in Constitutional Judicial Review, Judicial Bulletin 2/2011, page 15.
8 Recital 10.
9 The CJEU ruled on a preliminary question referred to it by a Spanish court in a case in which Mario C. González requested that the results of an internet search on his behalf not show a link to the newspaper in which his auction article was published. real estate in the process of enforcement due to non-payment of social security contributions. He claimed that the enforcement proceedings against him had been completed several years ago and that his mention was now irrelevant. The publication was otherwise legal, carried out by order of the Ministry in order to inform the public as much as possible and to attract as many bidders as possible.
10 The search engine plays a crucial role in the global dissemination of data, making it available to all Internet users who search on the basis of a person's name, including Internet users who would not otherwise find the website on which the data was published. As a result of organizing and accumulating information published on the Internet, users can get a structured overview of the information available on the Internet based on the list of hits by name and surname, which allows them to compile a more or less detailed profile of this person (35 to 37). justification point).
11 Recital 85.
12 Recital 87.
13 Recital 93.
14 In the judgment, the CJEU addressed issues concerning different persons and cases. The Supreme Court confines itself to only two of them, the specific circumstances of which are comparable to those of the present case. under which she was charged along with several businessmen and politicians. The proceedings against her were terminated by a decision terminating the proceedings of 26 February 2010. Most of the disputed links lead to articles published at the beginning of the investigation and therefore do not mention the outcome of the proceedings. ED requested that the links be removed to articles containing a report from a hearing in criminal proceedings in which she was sentenced to seven years' imprisonment and an additional ten-year sentence of protective supervision for sexual assault on minors under the age of fifteen. In addition, one of these articles from the Black Chronicle mentions several intimate details about the person ED that were revealed during the proceedings.
15 Recitals 75 to 78.
16 Half-brothers M. L. and W. W. were sentenced in 1993 to life in prison for the murder of a famous German actor, as reported by many media outlets. Ahead of the impending conditional release from prison in 2007, the lawsuits demanded that the media anonymize archival documents available on the website from the time of the trial. The ECtHR upheld the decision of the German Federal Court, which ruled in favor of the media, and did not find a violation of Article 8 of the ECHR.
17 Recitals 101 and 102.
18 Recitals 103 to 105.
19 The Polish lawyers succeeded in bringing an action for damages against the journalists and the editor-in-chief of the daily newspaper for interfering in their honor and reputation. Based on inaccurate and unverified rumors, the article insultingly stated that they were involved in suspicious business deals of politicians and gained wealth as bankruptcy trustees of state-owned companies. They later found that the article was also published on the newspaper’s website and made available to the public. They demanded that the newspaper remove him from the website. The Polish courts rejected the claim.
20 Recital 59.
21 recitals 65 and 66.
22 Salvatore Manni is the only manager of a construction company to be awarded a contract to build a tourist complex. In a lawsuit filed in 2007 against the Chamber of Commerce, he claimed that the real estate in this complex was not for sale because the register of companies showed that he had previously been the sole manager and administrator of a company declared bankrupt in 1992. was deleted from the register of companies in 2005 after the end of the bankruptcy proceedings. He demanded the deletion, anonymization or blocking of the data linking him to the company’s bankruptcy.
23 Those relating to the identity and functions of persons representing the company in transactions with third parties and in court proceedings or who are involved in the management, supervision or control of the company or have been appointed manager of the company.
24 Recitals 56 to 60
25 The practice of the Federal Constitutional Court of the Federal Republic of Germany is clearly the same, as follows from the article by Eneja Drobež, The Right to Oblivion: A Balance between Free Personal Development and Freedom of Reporting, Pravna praksa, no. 26-127, p. 41.
26 The active aspect of the right is reflected in the right of the media to provide information in matters of public interest, while the negative aspect is reflected in the right of the public to be informed or to receive this information.
27 Eg. decisions of the Constitutional Court Up-570/09 (point 6 of the reasoning), Up-2940/07 (point 7 of the reasoning) and others.
28 Decision of the Constitutional Court Up-444/09, item 8.
29 Nor is it permissible to publish things from the intimate life of absolutely public figures without consent, as the applicant rightly points out, referring to the ECtHR Von Hannover case. However, the present case is not about publishing such things.
30 recitals 18 and 19.
31 According to the first paragraph of Article 21 of the ECHR, judges must have a high moral reputation and must either meet the required conditions for the exercise of high judicial functions or be generally recognized legal experts.
32 Google Spain, recital 93.
33 Jasna Zakonjšek, Problems with Oblivion, Supplement to Legal Practice, no. 47/2019, page IV.Maja Ovčak Kos, Current issues of exercising the right to oblivion, Liber amicorum Anton Gašper Frantar, Supreme Court of the Republic of Slovenia, 2020, page 260.
34 It is quite possible to imagine one-off (instantaneous) events in which you are involved. relatively public persons, however, this does not mean that information and contributions related to him / her are (i) only of current or very short duration.
35 Maja Ovčak Kos, Current Issues of Exercising the Right to Oblivion, Liber amicorum Anton Gašper Frantar, Supreme Court of the Republic of Slovenia, 2020, pp. 260 and 261.
36 Thus, the Federal Constitutional Court of the Federal Republic of Germany in Judgment 1 BvR 276/17, summarized after Eneja Drobež, The Right to Oblivion: A Weighing Between Free Personal Development and Freedom of Reporting, Pravna praksa, no. 26-27 / 2020, page 42. Similar to Google Spain, recital 93.
37 CJEU C-136/17, recital 76, referring to the ECtHR judgment in M. L. and W. W. v. Germany (paragraphs 89 and 100 to 102).
38 Cases set out in recitals 20 and 22.
39 Recital 13.
40 This also follows from the practice of the CJEU and the ECtHR, which require the reaction of the controller or processor (at the latest) (at the latest) upon receipt of a request from a entitled person for data deletion or other action. See also the judgment of the ECtHR in L. L. and W. W. v. Germany (recitals 103 to 105) on the risk of a chilling effect in the case of a requirement that the media should automatically check the admissibility of published articles after a certain period of time. become illegal.


Relationship:

EU - Directives, Regulations, Decisions / Decisions, Agreements, Rules
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46 / EC - Article 17
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 - Article 1

Conventions, Declarations of Resolution
Charter of Fundamental Rights of the European Union - Article 7, 8
Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) - Article 10

RS - Constitution, Laws, Agreements, Treaties
Constitution of the Republic of Slovenia (1991) - URS - Articles 35, 38

Associated documents: *

* Cases in which the court has adopted the same substantive position on procedural or. substantive issues.

Date last modified:
    10/05/2020