HURBAIN v. BELGIUM JUDGMENT
the private, professional or public life of the person concerned and whether it
has a social impact, or whether, on the contrary, it falls within the intimate
sphere of private life and is therefore particularly sensitive.
215. In that connection the Court observes that in the specific sphere of
protection with regard to automated processing of personal data, the Council
of Europe’s Convention 108 on the subject (see paragraph 60 above) and the
modernised version, Convention 108+ (see paragraph 61 above), and also
Directive 95/46/EC (see paragraph 68 above), classify data concerning
criminal matters as “special”. By contrast, the Guidelines on the
implementation of the CJEU’s Google Spain judgment (C-131/12 – see
paragraph 77 above), the CJEU judgment in GC and Others (C-136/17 – see
paragraphs 83-84 above) and the ensuing judgments of the French Conseil
d’État (see paragraph 99 above), make a distinction between “sensitive” data
– those that represent greater intrusion into private life – and data concerning
“criminal” matters, which attract a higher degree of protection compared with
data that concern private life without being “sensitive”. For its part the Court,
in a recent ruling, characterised data relating to criminal proceedings as
sensitive (see Biancardi, cited above, § 67).
216. The Court also reiterates that the approach to covering a given
subject is a matter of journalistic freedom and that Article 10 of the
Convention leaves it to journalists to decide what details ought to be
published in order to ensure an article’s credibility, provided that the choices
which they make in that regard are based on their profession’s ethical rules
and codes of conduct (see Satakunnan Markkinapörssi Oy and Satamedia Oy,
cited above, § 186, and M.L. and W.W. v. Germany, cited above, § 105; see
also Recommendation Rec(2003)13 of the Committee of Ministers to
member States on the provision of information through the media in relation
to criminal proceedings – paragraph 64 above). In any event, in the case of
press articles about criminal proceedings, the inclusion of individualised
information such as the full name of the person concerned is an important
aspect (see Fuchsmann, cited above, § 37) and in itself does not raise an issue
under the Convention, even though a person’s name falls within the personal
sphere protected by Article 8 (see S. and Marper, cited above, § 66). This
applies both at the time of initial publication and at the time of entry in the
online archives.
217. In the present case the article in issue reported on a number of
road-traffic accidents that had occurred in 1994 within the space of a few
days, of which the accident caused by G. was one. The article mentioned G.’s
full name and described the circumstances of the accident. The Court
considers that, while the article did not concern an ongoing criminal
investigation or a criminal conviction, it undoubtedly related to facts which
subsequently gave rise to such a conviction. It therefore agrees with the
finding of the Liège Court of Appeal, which noted that the facts reported on
were of a judicial nature (see paragraph 29 above).
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