The conflict between the Right to be forgotten of the Criminal History and Freedom of Information: Digital newspaper archives (In this respect the Spanish Constitutional Court’ Judgment of June 4, 2018 and the European Court of Human Rights’ Judgment in the M.L. and W.W. vs. Germany case, June 28, 2018)

Abstract

In general, freedom of information is one of the limits of the right to be forgotten. The possibility of locating, in the newspaper’s digital archive, a story published some time ago, using personal data as search criteria, specifically names and surnames, motivated the ruling of the Spanish Constitutional Court (TC). In this case, the right to be forgotten carries a disservice to the privacy. This paper analyses the Spanish Constitutional Court Judgment (STC) of June 4, 2018, which expressly recognizes the so-called jurisprudential right to be forgotten as an inherent right to personal data protection and therefore as a fundamental right. On the other hand, this paper analyses de European Court of Human Rights’ judgment (ECHR) in the M.L. and W.W. vs. Germany case, June 28, 2018. In the conflict between the right to be forgotten of the criminal history and freedom of information through digital newspaper archives the Spanish Constitutional Court use the same claims that it has been using in its traditional case law on the limits to the freedom of information along with the test of time and the impact of the data digitalization. To conclude that the limit of use the names and surnames as search criteria was provided. However, digital newspaper archives contribute substantially to the preservation and accessibility of news and information. The Spanish Constitutional Court Judgment is, in this sense, rights-based for data protection. However, the net users legitimate concern in getting information about past events is devalued in the deliberation. By contrast, the ECHR position submits that the name and surname of a newsmakers person represents a key element of the press work and for the credibility of the news, especially in criminal cases . It would be likely that the Spanish case would be brought before the ECHR arguing the relevance of the public’s right to access information, including on past events.

Summary:
I. INTRODUCTION. II. THE RIGHT TO BE FORGOTTEN. III. THE CRIMINAL PAST. IV. THE CONFLICT BETWEEN THE RIGHT TO BE FORGOTTEN OF THE CRIMINAL HISTORY AND FREEDOM OF INFORMATION: DIGITAL NEWSPAPER ARCHIVES 1. The position of the Supreme Court. V. THE SPANISH CONSTITUTIONAL COURT’ JUDGMENT OF JUNE 4, 2018. 1 The constitutional doctrine on the right to be forgotten. 2. The application of the doctrine to the resolution. VI. THE EUROPEAN COURT OF HUMAN RIGHTS’ JUDGMENT IN THE M.L. AND W.W. VS. GERMANY CASE, JUNE
28, 2018. VII. CONCLUSIONS.