Removal From Archives
More and more newspapers and magazines put their archives online. This makes it easy to find articles, and therefore also the information about people in them. The exploitation of an archive also falls under the (journalistic) freedom of expression, but there can now be a collision between the freedom of the press and the privacy of those people. After all, mentioning someone’s name or other personal data is covered by the Privacy Act .
In general, however, you cannot demand that a message be deleted from an archive. Cleaning or removing messages from an archive affects their quality, and the memory of the press is seen as so important that they should always remain intact. Sometimes a rectification can be added to the article.
Freedom of expression versus privacy
Information about a person falls under the privacy law, but also under the freedom of expression. This creates a clash between two fundamental rights. How that collision turns out each time depends on the specific circumstances.
Publication of information – on the internet or offline – falls under freedom of expression. However, as soon as there is personal information about someone, even if it is just a name, that publication also falls under privacy legislation. Pursuant to the Personal Data Protection Act, that person can in principle require that that information be removed or made anonymous. However, that clashes with freedom of expression, which says that you can safely say things about people.
According to the Personal Data Protection Act, a journalist must have a legitimate interest that requires that this personal information be published and thereby violate that person’s privacy. In practice, this means a weighing of interests: what is more important, freedom of expression or privacy? And there are no hard rules, but you have to look at the facts and circumstances of the case every time. It is therefore very difficult to formulate a general rule of thumb.
The privacy law (Personal Data Protection Act) applies to journalistic “processing” just as hard as to normal processing. Although there is an exception (Article 3) in the law, that exception is only limited. The most important thing is that Article 8 of the Wbp simply remains in force, and it is precisely there that permission is required in principle for the publication of names or other personal data. This is also apparent from the Guidelines for personal data on the internet of the College Bescherming Persoonsgegevens (page 33). In 2008, an article was prohibited on a website on the basis of Article 8 of the Wbp.
The memory of newspapers
Archives are sometimes referred to as the “memory” of the media. These are very important for society: being able to read back old news is vital. This means that removal of personal data from archives is not possible in principle.
Society must be able to rely on the integrity of news archives. After all, this is one of the most important sources for finding out (recent) history. The European Court of Human Rights sees the importance of archives as an essential part of the “public watchdog” function of the press. In a 2009 judgment, it therefore ruled:[the press] has a valuable secondary role in maintaining and making available to the public archives containing news which has previously been reported. … [however] the duty of the press to act in accordance with the principles of responsible journalism by ensuring the accuracy of historical, rather than perishable, information published is likely to be more stringent in the absence of any urgency in publishing the material
The “memory of newspapers” is therefore in principle more important than the possible adverse consequences that a person may experience from an old article that remains continuously visible through search engines. More about this topic in the legal article The Iron Memory of the Internet by Wouter Hins.
Requirements for removal in case law
Various lawsuits attempted to remove articles from online archives. However, that never really happened when the articles were legitimate in themselves. No longer supporting an opinion or being bothered by a publication afterwards is no reason for deletion.
No obligation to remove
Judges in the Netherlands appear to be very reluctant to order articles to be removed from archives, due to the important role cited above play in our society. As the Amsterdam court put it in 2019:This means that an obligation to remove articles that are legitimate in themselves solely because of a negative charge cannot be properly reconciled. The archiving would then no longer be a reliable testimony to the past.
At the end of 2019, the Council of State ruled that an interview did not have to be removed from the archive, because the interviewee had agreed at the time and now had no such important interest that removal would be necessary.
Also in a case about the Eindhovens Dagblad a removal requirement was not granted. Although blockade or removal was technically a minor intervention, the newspaper did not have to respond. An appeal to the Zwartepoorte judgment , in which a site had to take a “small effort” to prevent unfortunate Google search results, was to no avail.
The Council for Journalism also felt that cleaning up archives was not necessary .
Possibility of rectification
However, there seems to be room for demanding a digital rectification in the form of a notification with the archive message. In that case of the Eindhovens Dagblad, for example, it was judged that “it was previously on the [plaintiff’s] way to have an addition or rectification added to the article”. The Press Council ruled in 2005 which The fact that the internet site has an archiving function, as a result of which the message cannot be removed from the site, does not relieve the defendant of its responsibility to rectify incorrect reporting. Such a message can, for example, be supplemented with a message that it subsequently turned out that the message is factually incorrect.
But such a claim can of course only be made if the message is unlawful for some reason. In theory, the requirement for screening for search engines should also be feasible if the message itself is correct, but this has never been litigated.