In 2019, Germany's highest court ruled that a man convicted of murder in 1982 has the "right to be forgotten", meaning his name can be removed from online search results.

The man complained that although he had served 20 years behind bars for killing two people, he was still paying for the crime. He argued his name was linked to the crime every time anyone searched for him on the internet, robbing him of the right to start a new life.

The man also said that every time he tried to develop a relationship or find a job, his crime came up in an internet search and he was rebuffed. He argued that the internet interfered with his right to a normal life.

Does the public deserve to learn about a person's past crimes on the internet?

In 2009, the man failed to get the court to have the reports removed from the internet. The court ruled the public had a right to know that he was found guilty of the murders.

However, in 2014 the European Union Court of Justice ruled that EU citizens had the "right to be forgotten", and the right to request that data about them be deleted from search engines inside the EU.

Following this, in 2019, the man appealed the court's decision and took his case to a higher German court, which ruled that under the EU law, he did have the right to be forgotten. (See German murderer wins 'right to be forgotten', BBC News, November 2019.)

Complexities around "right to be forgotten" laws

There is no such "right to be forgotten" law in Australia, and it is such a vexed legal question that it would create a huge quandary for anyone who had to draw up such legislation.

The question is whether politicians, lawyers, business people, criminals or anyone else in Australia should have the right to get their past crimes and misdemeanours wiped from the public record on the internet.

Certainly, we should have a right to privacy, and victims of crimes such as revenge porn should be able to get such material removed from public view.

But does that extend to deleting history? Does it extend to wiping embarrassing video footage of us behaving badly, because it damages our job prospects? What about Twitter posts that we later regret?

What information should be removed from the internet?

The so-called "right to be forgotten" puts privacy and free speech on a collision course. We should be able to search a person's name online and learn about their past, without it being censored.

Surely, if a woman is going on a first date, she should have the right to know if the other person has served time in jail for murder or rape.

We may not like a story about us that appeared in a newspaper or on TV, but should the law decide how embarrassing it has to be before we can get it deleted from the internet?

Avenues already exist for getting incorrect or defamatory articles removed from media websites. However, it can be very difficult, especially if the media organisation argues that its report is correct.

While people are winning defamation actions for online information pertaining to them, it's a huge step to delete historical material that someone simply wants forgotten.

Michael McHugh
Criminal law
Stacks Law Firm

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