Can a press article that was originally lawfully posted on the internet lead to a violation of the general personal rights of the person concerned after a general public interest in the reported events has lapsed? The Higher Regional Court of Hamburg had to deal with such a claim for injunctive relief.
A communications consultant was accused of having sent anonymous faxes with insulting and defamatory statements to a German politician following a criminal complaint. In agreement with the plaintiff, the public prosecutor's investigation proceedings were finally discontinued in return for payment of EUR 40,000.00. The specific circumstances of the discontinuation of the proceedings were reported very critically in the press.
The publisher of a national daily newspaper kept the reports of the time available for retrieval on the newspaper's Internet archive even after several years.
After the criminal proceedings against the communications consultant were discontinued, he demanded that the publisher refrain from making the information publicly available on the Internet, as the reporting violated his general personal rights. He had a right to be forgotten based on his personal rights.
The publisher defended himself against the claim and was upheld at first instance. The Hamburg Regional Court justified its rejection of the claim for injunctive relief based on the communications consultant's general right of personality by stating that an interference with the freedom of reporting was not permissible given the existing public interest in the articles.
Decision of the court
The Higher Regional Court of Hamburg ruled Judgment of 07.07.2015 (Ref. 7U 29/12)that press publications addressing a preliminary investigation, which can be found and retrieved permanently by any Internet user without great effort, significantly impair the personal rights of the person concerned.
The person concerned only has to accept this impairment as long as there is a strong public interest in the events. However, if - as is often the case when reporting on allegations of a criminal or similar nature - the justified public interest diminishes over time. This must apply in particular if, as in this case, the allegations have not progressed beyond a discontinued investigation, the discontinuation of the proceedings has led to a conclusion of the matter and it is now several years ago.
Conclusion
The general personal rights of the individual must always be weighed against the public's interest in information. In many cases, the legitimate public interest diminishes considerably over time, so that the rights of the person concerned outweigh the public interest over time. There is therefore a right to be forgotten that stems from the general right to privacy.
However, the person concerned has a corresponding duty of disclosure. The operator of a press archive only has to take precautions to ensure that the relevant contributions do not become a constantly flowing source of infringements of the personal rights of the person concerned.
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