German murderer wins 'right to be forgotten'
bbc.com
bbc.com
I find this really troubling, because just making it harder to find does not remove it and shifts power to persons who can make better use of search/indexing tools or have the means to hire someone who does.
If you are a regular employee seeking a new job, it shields from idle searches turfing up minor offences from years or decades ago. Europe seems to embrace the possibility of rehabilitation, and I think it's fair that shoplifting or a suspended sentence eventually goes away. In this context, plenty of roles would be exempt from the expiry, e.g. joining the police, or working in the legal system, among many others.
Neither case will prevent some major politician, business leader or celeb being investigated if they come under enough of a cloud. Lack of search just makes it a little less trivial. If your journalist really thinks there is history to be found you send an intern or three to trawl through 30 years of press archives at the local reference library. How it used to be done.
To me, that seems a reasonable balance and sensibly protective of the general population being discriminated against for having done something minor and daft 25 years ago.
I think it would be much more sensible to require the actual sources to anonymize their online content after a certain time or just whenever something like this goes to court instead of having private companies keep registers of "forbidden" links.
It is a really hard or maybe impossible problem to de publicize something on the internet. Though I do think clear laws with due process would work much better then using middlemen like the search engine providers to police on their own merit.
That's a rather poor translation of "Recht zur freien Persönlichkeitsentfaltung". It's not really about developing your personality, it's the right to live freely and pursue your personal life goals; something more akin to "the pursuit of happiness".
I bet that the people already rotted due to his bullets will ask the court for the same rights.
From what I've read, the judges primarily bemoaned that it is so easy to search for his case by his name. Instead, the German magazine Der Spiegel is supposed to kind of obfuscate the original articles in their online archive, making discovery harder, but not necessarily to delete them or alter his name in them. The idea is that the stories should be harder to find in searches by name. In my opinion that makes no sense, neither technically nor from the point of view of the 'right to be forgotten' - and in a case like this, the stories are all over the net anyway.
In the case of the "right to be forgotten" no kind of obfuscation is needed from the publisher. Article stays where it is in its originality the only thing that happens is that article is no longer shown in search results of search engines when searching the mans name. If you search for the name of the victim those articles still might show as search results.
The question is whether the court would be happy with just this. Does the verdict say it's up to Der Spiegel to get this unsearchable, or up to some search engines like Google to remove it from their indexes?
BTW: TIL that Yandex also supports <noindex> HTML tag:
<noindex>Don't index this text.</noindex>I'm not sure if we have the same definition of that word. Maybe it is one of those marketing-speak lifetimes?
Interestingly, the ruling refers to the yacht as "A.", unlike the BBC article which uses the full name.
In fact, at least in local news it is customary to publish name and residence location (to avoid confusion).
E.g. a newspaper article would say that "John Doe of Dodgy Street, London has been sentenced today at the Old Bailey to 10 years for drug trafficking", often with the police mugshot as illustration. My local news site runs an article every month with these details for all the people sentenced locally during the past month.
If that were some sort of important guiding principle of all of the UK press in general, you'd think that the BBC would have dug up the person's name in this case. I don't have much data to go on, but I thought that the BBC might apply different standards than tabloids or the local news.
As said, in the UK it is not viewed negatively to name people and specifics in criminal cases, quite the opposite: It is something the public expects and demands.
A minor offence would be legally forgotten quickly, a murder would carry a sentence of over 4 years which would never be eligible for forgetting. It seems odd to me to clear something quite so serious.
This strikes me as self-censorship.
As an aside, it's also interesting that a person sentenced to life for murdering two people in 1982 was freed in 2002...
The "self-censorship" is done out of respect for the spirit of the law.
You're talking about "Sicherungsverwahrung", which has indeed that effect, but a regular life sentence without Sicherungsverwahrung can also be indefinitely long, until the person dies.
There are also perodical checks whether the prisoner is still a danger to society or whether he can be released, but it is possible to stay in regular prison without Sicherungsverwahrung forever.
Or fear of being dropped by the search engines?
Life sentence is 20 years, (a bit less if you show remorse). Unless you are deemed criminally insane then you won't come out maybe ever.
Also in the EU the name of criminals are usually not printed or published in any other way unless it's a big thing like murder of multiple people or massive fraud.
Tabloids sometimes do print the names but usually only with the first letter of their last name
That is not true at all.
Criminal trials are public and people are fully named in the media in many countries unless there is a specific court order against it (which I have never heard off except for minors).
(Germany is not the EU)
I don't think naming people online is a good idea any more.
[0] https://en.wikipedia.org/wiki/List_of_prisoners_with_whole-l...
The UK has had issues about this and has had to find a way to adapt: Whole-life ordesr have to be reviewed after some time in order to give a chance of release (at least on paper).
For the same reason, e.g. in France life sentences come with a maximum of 30 years before becoming eligible for parole. What they do is then that they simply keep denying parole for prisoners they want to keep inside.
That's the UK context, but most of Europe seems to operate similarly.
Justice system in Europe is not a business, like it is in US, or a way to inflict a punishment, it is a rehabilitation process: if you prove you have changed, you can benefit from reduced sentences, furlough for good behavior and/or early releases.
If you haven't, you stay in jail.
Think about the U.S. system where people can be taken to custody for murder but can bail out, is that better in your opinion?
In Italy, for example, to keep mob affiliates in jail in solitary confinement, so they can't speak with the outside, they had to make a specific law, otherwise it would not be possible within the Italian prison system.
Humans have a strong natural instinct towards justice — when soneone wrongs us, we want to take revenge. In a state of nature this of course leads to endless and bloody feuds, so at some point it became more sensible to devolve the job of taking revenge to some kind of king or government, to ensure that revenge is taken exactly once instead of becoming a never-ending cycle.
This worked pretty well for thousands of years, but in the last century or so it has been falling apart. Soft-headed Government types have started to believe that the actual purpose of the justice system is rehabilitation, not justice, and as a result justice is rarely if ever served. Ask victims of crime if the sentence given to the perp is anywhere near what they’d choose, and they’ll say no. And then, the sentence that is given rarely gets carried out, like this scumbag who was sentenced to life and released just twenty years later.
The right to revenge is one of the most important human rights of all, and it is utterly neglected in western societies these days. A proper justice system would have a lot more crooks dying in jail and a lot less crime being committed.
Not in Europe, since "Dei delitti e delle pene" (On Crimes and Punishments ) from Cesare Beccaria.
It was 1764, we were already aware of that.
Justice is not a way to inflict punishment, the sentence, as Beccaria put it "should be in degree to the severity of the crime" and should work as deterrent, not as retribution (which is usually the case in US especially the death penalty, that have the purpose of giving "an eye for an eye" to the victim's family).
> Humans have a strong natural instinct towards justice
No, they don't.
Homō hominī lupus, men are very social animals, it doesn't mean they lean naturally towards justice, they just defend their communities against other communities.
> This worked pretty well for thousands of years
It didn't actually.
That's why we constantly reformed our justice system.
Think about the code of Ammurabi, does this work in your opinion?
"If the wife of a man has been caught lying with another man, they shall bind them and throw them into the waters. If the owner of the wife would save his wife then in turn the king could save his servant."
It never really worked, especially for the regular folks, still today has a lot of flaws let alone thousands of years ago. In Italy it was legal to kill the wife that cheated (but not the husband who did the same), it was called "honor killing" and it was abolished only in 1981.
So, no.
> The right to revenge is one of the most important human rights of all
It is its greatest fault indeed.
And it is what makes USA a country where the risk of being killed by a stranger is 10 times higher than in Italy (5.63/100,000 vs 0.55/100.000), it is higher than many third world countries or countries that are at war like Sudan, Kenya, Niger, Libya, Syria or Iran.
This probably has its roots in the past, with Nazi lynchings were justice was just skipped and people thought they had to carry out a sentence themselves.
Although I understand the emotional conflict that arises from situations like these, it gives me actually confidence in the justice system of the nation I currently live in: if they even defend the rights of a murderer, this indicates they will also take the privacy of everybody else seriously.
Edit: I also don’t feel I need to know whether e.g. my neighbour served a prison sentence — the goal of german prisons is rehabilitation and they are actually not bad at that.
He murdered people on a yacht - maybe he's rich? At least an alternative explanation for why his case was honoured by the highest court.
Suing in Europe is pricey and time-consuming, so I would not say your privacy would be taken seriously "by default" so to say.
This murderer will still be under supervision until they die, will have particular restrictions about how they live their life, and will be recalled to a prison for almost any minor offence. However the parole board will have made a decision that they are unlikely to offend again and so it is better for society, the taxpayer (and the individual) to allow them to live outside of the prison walls,
"rectify — the Ministry of Truth euphemism for the alteration of the historical record:"
In 1984 the facts were changed, the chocolate ration is the most famous example of this.
This is just the right after 30 years of jail having paid the debt to society to have a second chance.
The official records and newspapers of the past 30 years report the fact as it happened, nobody altered them
That's a lot more difficult if any employer (for example) googles his name and decides to not hire him because he did something thirty years ago.
He's asking for a change in search results, that won't erase what he did and / or his conviction.
Point is in life there are things you can't walk back.
I don't get this article at all...
I'm not talking about familiarizing yourself with standard legal doctrine or landmark constitutional court rulings. Just having a little respect for the fact that the US Constitution does not apply.
The right to be forgotten is not decided on a whim by a few judges, according to their personal preferences, there is legal text surrounding the issue.
We Europeans who criticize your Second Amendment may be shallow, as well, but we have usually at least read something about a "well-regulated militia" or the "right to keep and bear arms", so we understand where you're coming from, even if we think that's nuts.
> none of the commenters have ever even read the two or three short articles of our Grundgesetz
... referring to "two or three" specific articles without providing a link, or at least the numbers so we can look them up, is not as useful as it could be.
Someone (a chief of police somewhere, IIRC) once put it like this: "We have a tradition in this country that you're sentenced by a fair court, and once you've served your punishment, you have paid your dues. Adding extra sanctions afterwards threatens the fairness of that system." That's a poor misquote on my part, but good principle on his/her, and legible in a way that the Grundgesetz doesn't try to be.
The right to be forgotten tries to alleviate the symptoms of the first question by addressing the second question.
It's similar to addressing homelessness by banning the reporting of homelessness. There are complex questions that need to lead to major societal change that can't be solved by removing data from the public record.
The right to be forgotten doesn't ban reporting, it blocks two-second searches of someone's name, and thus raises the price of finding something hidden in someone's past back to the level it used to have before Google came along with effective web searches. You can still go down to the public library and do the same search as you could in 1995 or 1971. What Google changed and the right to be forgotten changed back is the availability of cheap, quick searches.
The reporting is still legal, so I can't see significant similarity.
So I think it's entirely different than banning the reporting of homelessness. It's similar to deleting your past status as homeless once you've made if back from the streets (assuming such a register exists and should exist...).
It's also entirely different than banning statistics about murders, past murders or the trend of murdering people. These statistics are not about the individual.
Shouldn’t a newspaper or public forum be able to discuss a wrongdoing in the context of a history of wrongdoings?
The public’s clarity is what’s being traded here. I would argue that the public and any relevant professional groups should never forget fraudsters such as the CEO of workriot or theranos.
Another very dubious aspect of the right to be forgotten is that so as long as outside parties exist in a complicated multipolar world, some very major and relevant parties such as landlords or investors will likely play with such knowledge and also be able to afford cover. Meanwhile everyone else has less clarity on the situation.
But I think you touch the issue. I don't think the answer to your questions is always an unconditional yes, the opposite question can also be agreed upon. There is no right or wrong. If our goal as society is rehabilitation and reintegration of offenders (and not punishment as an end to itself), then starting with a clean slate after serving your sentence is a fair solution. Shouldn't people have the chance to leave their past behind and not be followed by their mistakes for the end of their live? They only have one. But if we choose this path, we have to be realistic, since your question are certainly important consequences.
> The public’s clarity is what’s being traded here. I would argue that the public and any relevant professional groups should never forget fraudsters such as the CEO of workriot or theranos. I agree, but I think is on the "should not be forgotten" part of the balance.
I think it may highlight cultural differences. In another comment "freedom of speech" in germany was brought up. It's a similar tradeoff there and we rely on a reasonable legal system to implement it correctly and balance the tradeoffs. I agree even stronger with our approach on "freedom of speech" and certainly do not want rights as phrased for example in the US constitution. In my point of view it's an important lesson from our history in germany. Its something I very, very strongly agree with.
Honestly, if one a) isn't capable of grasping the idea that different countries have different foundational laws, and b) isn't capable to find the relevant passages of the Grundgesetz without external help, one should really double check whether commenting on the case at hand is a net plus for the community.
> relevant passages
That's the place in your post where a link (or article number) would have been useful.
The court also detailed the reasoning in the paragraphs below, always referencing the actual laws. Search for "GG", which is the abbreviation of Grundgesetz.
The first sentence of the ruling says that the paintiff's rights under articles 1 and 2 were affected, but that doesn't mean that those articles are the only relevant parts of the Grundgesetz.
> The court also detailed the reasoning in the paragraphs below, always referencing the actual laws.
Yes, I've had the idea of looking at that myself. That references at least articles 1, 2, 5, 20, 23, 24, 25, 26, 59, 93 GG, as well as at least the European Convention on Human Rights, the Treaty on European Union, and GDPR.
If the OP's point was that this ruling follows directly from "two or three articles" of the Grundgesetz, the OP was wrong -- even if speaking figuratively. The actual reasoning is based on much more than that, including EU law. Unsurprisingly, the issue is much more complex than the OP made it out to be, otherwise it never would have made it past the appeal before the Bundesgerichtshof anyway.
Is that covert racism (although "racism" is the wrong word, since there is no ethnical US race – maybe "exceptionalism" as in "only our superior people can actually make it work")?
I mean I understand when it comes to Germany. The de-nazification was heavily based on censorship. All newspapers were banned. They were later allowed to re-open, with a license by the military government. Freedom of speech was certainly not something that America wanted in post-war Germany. The same with Japan (whose civil law is so close to German civil law that there are multiple professorships in Germany in comparable Japano-German law studies).
But elsewhere? All those nation-building instances that were not directly related to Nazi Germany? All those new eastern-European states, the Balkan states etc.? They draw heavily on European examples, but very rarely on America. I don't feel that geographic proximity alone could explain that.
It certainly does not have a copyright
Maybe those values were not part of the founding culture - nothing worse than throwing empty words into a foundational document
In the US you see people fight to this day for the 1st (and 2nd) amendment, not because they were written down 200+ years ago, but because it’s part of the culture
Fair point. I started my comment about nation-building efforts by America, where America was dominant and the country in question had virtually no way to decide otherwise (like with Germany).
But when I was done editing and re-editing it I had extended it to all kinds of newer countries, and your point is well taken there.
And how could they do that?
My two cents: maybe the memory should be longer for a few things, stealing a loaf of bread or smoking pot is quite different from murders. In many countries cold blooded murders give you a life sentence or death (either by the state--or victim's family members when the state does not act) so maybe this guy should have had the chance to file such an appeal.
Personally I think we should either rehibilitate and then forget in order to give them a chance to contribute to society, or keep them in prison. The idea of releasing people but then villifying them will basically just channel them back into the criminal system again. Studies have shown the best way to prevent crime is with reintegrating them socially. The biggest risk factors are:
"prior criminal history, lifestyle instability (unemployment, frequent moves), and negative peer associations"
The right to be forgotten would reduce two out of three of those risks.
https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/smrsk-fctrs...
It was "Mord" according to the ruling (https://www.bundesverfassungsgericht.de/SharedDocs/Entscheid...), which is "murder", even if German law might not use the exact same wording as whatever laws you may have in mind. See https://en.wikipedia.org/wiki/Murder_in_German_law.
> The idea of releasing people but then villifying them will basically just channel them back into the criminal system again.
Agreed.
"Voluntary manslaughter Sometimes called a crime of passion murder, is any intentional killing that involves no prior intent to kill, and which was committed under such circumstances that would "cause a reasonable person to become emotionally or mentally disturbed". Both this and second-degree murder are committed on the spot under a spur-of-the-moment choice, but the two differ in the magnitude of the circumstances surrounding the crime. For example, a bar fight that results in death would ordinarily constitute second-degree murder. If that same bar fight stemmed from a discovery of infidelity, however, it may be mitigated to voluntary manslaughter."