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Right to be forgotten. The paths for its application in Montenegro
The right to be forgotten is defined as the right to have private information about a person be removed from Internet searches and other directories in some circumstances. In other words, it is a component of the right to privacy, addressing the complex conditions under which individuals can control their personal data online. This right allows users to request the deletion of links to content no longer relevant or outdated. It can be governed by data protection laws or privacy rights. Balancing an individual's right to be forgotten with the public's right to remember involves other significant rights, such as freedom of speech and the right to remember, as established by the European Court of Human Rights (ECHR) and the Court of Justice of the European Union (CJEU).
Within the framework of the project Building Trust in Media in South-East Europe: Support to Journalism as a Public Good, funded by the European Union, the Media Council for Self-Regulation of Montenegro (MSS) presented a new study – “The Right to be forgotten in the Montenegrin media landscape with an overview of comparative practices” – on 17 May 2024 at the Faculty of Law of the University of Montenegro, in Podgorica. Calling for the implementation of the right to be forgotten in Montenegro through law and self-regulation mechanisms, the study, published by MSS, was conducted by Ranko Vujović and Aneta Spaić (MSS), Paula Petričević, the ombudsman of DN Vijesti and Monitor, and Ilija Jovićević, the ombudsman of the daily newspaper Dan.
Montenegrin media landscape
The new study aims to shed light on the European framework and practice regarding the right to be forgotten, including cases before these courts. It also analyses how certain self-regulatory bodies in Europe, as well as regional ones like those in Serbia and North Macedonia, have regulated this right in their codes. Interviews were conducted with European experts, journalists, and editors to gather data on the situation of the right to be forgotten in Montenegro.
In the final part of the study, the authors formulate guidelines for self-regulatory bodies, for handling cases invoking the right to be forgotten in Montenegro. The recommendations shall apply to each individual case, whether the individual is a public figure, the information is inappropriate, accurate, relevant or not, and/or due to other circumstances constitute grounds for requests for erasure or removal of links to published content.
The right to be forgotten is not regulated in Montenegrin legislation or in self-regulatory documents, but it gained prominence in 2014 when a Spanish businessman sued Google over search results that linked to information about his company's bankruptcy from 10 years prior.
Obstacles in the legal context
Vuković further clarified that the European Court of Justice in Luxembourg ruled in his favour, ordering Google to remove the links to the bankruptcy information. This case brought international attention to the right to be forgotten, particularly within the context of data protection laws like the General Data Protection Regulation (GDPR), which dedicates Article 17 to this right.
As Montenegro is not a member of the European Union and has not transposed the provisions of the GDPR into its legal system, the right to be forgotten is not available to Montenegrin citizens. This right is not ensured and protected in the way it is done by the GDPR and other relevant regulatory acts, guidelines, and court judgments. Therefore, it is unsurprising that the application of this “emerging right” in Montenegro is spontaneously divided between judicial practice and the practice of media self-regulatory bodies.
The way forward
Aneta Spaić, Dean of the Faculty of Law, University of Montenegro, discussed 2 main legal instruments for the right to be forgotten: anonymisation and de-indexing. However, there is a lack of universal criteria and clear boundaries for applying these measures, stressing the necessity for media outlets to carefully evaluate each deletion request.
"Decisions on recognising the right to be forgotten often depend on media editors, who consider options such as content removal, de-indexing or anonymisation", underlined Paula Petričević, Ombudsman of DN Vijesti and Monitor, who also emphasised the importance of balancing the preservation of archives with respecting the right to be forgotten. Petričević recommended removing personal data from articles and de-indexing them from online searches, while maintaining archival integrity. Transparency about content removal or intervention should be ensured by notifying the public and providing access to modified information for research purposes.
