About a month ago, the European Court of Justice decided an important internet and freedom of expression case. I just posted a link to a commentary I have written for Mediaforum (in dutch). I do recommend reading the case.
One conclusion I drew from it, is that increased publicity and findability can end up having a negative impact on the integrity of online archives.
I point to the Court’s first general, explicit (and lukewarm) consideration of the importance of the Internet:
In light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information generally. The maintenance of Internet archives is a critical aspect of this role and the Court therefore considers that such archives fall within the ambit of the protection afforded by Article 10.
I criticize the Court for its distinction between the protection of online archives of publications and new publications. It is great that the electronic environment incentivizes newspapers not to make such a distinction and not to remove their historical publications. It means that the electronic environment can add to the value of the newspaper for itself, for other information providers (they can link to them) and for users (they can inform themselves by navigating a networked hyperlinked environment).
And to conclude these short pointers, I wonder why the Court uses the word ‘likely’ in some of its crucial considerations with regard to the implications of Article 10 ECHR:
The Court therefore considers that, while the primary function of the press in a democracy is to act as a “public watchdog”, it has a valuable secondary role in maintaining and making available to the public archives containing news which has previously been reported. However, the margin of appreciation afforded to States in striking the balance between the competing rights is likely to be greater where news archives of past events, rather than news reporting of current affairs, are concerned. In particular, 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.
This is a Court that stops being the highest Court to address these questions. I have looked for a similar weak statement about the implications of Article 10 ECHR but did not find it. Please send me a note if you know another!