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HURBAIN v. BELGIUM JUDGMENT 78. The relevant parts of the answer to the second question/criterion read as follows: “The CJEU has made an exception for de-listing requests from data subjects that play a role in public life, where there is an interest of the public in having access to information about them. This criterion is broader than the ‘public figures’ criterion. What constitutes ‘a role in public life’? It is not possible to establish with certainty the type of role in public life an individual must have to justify public access to information about them via a search result. However, by way of illustration, politicians, senior public officials, business-people and members of the (regulated) professions can usually be considered to fulfil a role in public life. There is an argument in favour of the public being able to search for information relevant to their public roles and activities.” 79. The answer to the eighth question/criterion reads as follows: “There is no obligation for the data subject to demonstrate prejudice in order to request de-listing, in other words prejudice is not a condition for exercising the right recognised by the CJEU. However, where there is evidence that the availability of a search result is causing prejudice to the data subject, this would be a strong factor in favour of de-listing. ... The data might have a disproportionately negative impact on the data subject where a search result relates to a trivial or foolish misdemeanour which is no longer – or may never have been – the subject of public debate and where there is no wider public interest in the availability of the information.” 80. The answer to the thirteenth question/criterion reads as follows: “EU Member States may have different approaches as to the public availability of information about offenders and their offences. Specific legal provisions may exist which have an impact on the availability of such information over time. [Data protection authorities] will handle such cases in accordance with the relevant national principles and approaches. As a rule, [data protection authorities] are more likely to consider the de-listing of search results relating to relatively minor offences that happened a long time ago, whilst being less likely to consider the de-listing of results relating to more serious ones that happened more recently. However, these issues call for careful consideration and will be handled on a case-by-case basis.” 3. Two judgments delivered by the CJEU on 24 September 2019 in response to requests for a preliminary ruling concerning the obligation for operators of search engines to grant requests for delisting (“de-referencing”). 81. In the first judgment (GC and Others v. Commission nationale de l’informatique et des libertés (CNIL), C-136/17, EU:C:2019:773), the CJEU was called upon to rule as to whether the prohibition or restrictions relating to the processing of certain categories of sensitive personal data also applied to the operators of search engines. Ms G.C., Mr A.F., Mr B.H. and Mr E.D. had brought proceedings in the French Conseil d’État against the National 32

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Hurbain v. Belgium

Case Law

Country

Belgium

Country Location

Latitude: 50.855421148205785

Longitude: 4.557127118111282

Country Location (linked Case Law): Belgium

Decision Date: Jul 4, 2023

Case Status: Closed

Case Outcome (Procedural)

Inadmissible
Motion Denied

Case Outcome (Disposition)

Injunction, Order, or Motion Denied/Vacated

Keywords

Access to Information
Digital Rights
Freedom of Press
Media/Press
Privacy, Data Protection and Retention
Right to be Forgotten

Judicial Body: European Court of Human Rights (ECtHR)

Court Name: The Grand Chamber, European Court of Human Rights (ECtHR)

Case Number: Application no. 57292/16

Case Summary: The Grand Chamber of the European Court of Human Rights (ECtHR), in a majority judgment, held that an order to anonymise an article in a newspaper’s electronic archive (which referred to a person’s involvement in a fatal road traffic accident for which they were subsequently convicted) did not breach the applicant publisher’s right to freedom of expression under Article 10 of the European Convention on Human Rights. The applicant, Patrick Hurbain’s newspaper Le Soir published an article reporting on a series of fatal car accidents which had occurred in a short period of time. It mentioned the full name of one of the drivers involved, “G” who successfully sued the applicant and received an order in their favour. The ECtHR upheld the decision of the domestic courts and emphasized that a person who is not a public figure may acquire notoriety in the context of a criminal process/trial but that may decline with the passage of time, with the effect that they may be able to rely on the right to be forgotten in order to go back to being someone who is unknown to the public. In reaching such conclusion, the court tailored a seven-criteria test which is to be applied in right to be forgotten cases.

Case Significance: Decision (including concurring or dissenting opinions) establishes influential or persuasive precedent outside its jurisdiction.

In this judgment the Grand Chamber has provided important clarification as to the approach to be taken to “right to be forgotten” requests directed towards content providers and, in particular, towards media archives. The judgment provides clear criteria for deciding whether or not a right to be forgotten request should be accepted by the operators of a media archive. Those criteria have been specifically tailored to cases in which “right to be forgotten” requests are made against content providers rather than search engines.

Attention is drawn to the following points in relation to “right to be forgotten” clams:

The right is not likely to be available in respect of reports of the most serious criminal offences, or ones of historical or statistical significance.

The longer the time that has passed the stronger the claim will be.

Current contribution to a debate of public interest is not decisive – historical and scientific value is also important.

There must be a properly duly substantiated claim of serious harm to private life – rehabilitation is important but not enough on its own.

The measure which is least restrictive of press freedom must be used.

The majority were not persuaded that by the dissenters view that the Court should recognise an Article 10 “right to remember” (see in particular the concurring opinion of Judge Krenc, at [23]).

The Grand Chamber’s approach is very similar to that which is undertaken in a right to erasure case brought under Article 17 of the UK GDPR. Article 17(3) provides for erasure requests to be refused where the processing is necessary for exercising the right to freedom of expression and information and for archiving; that demands a balancing exercise. The European Data Protection Board’s Guidelines 5/2019 on the criteria of the Right to be Forgotten in the search engines cases under the GDPR (part 1) [pdf] and the CJEU have laid down criteria for this balancing exercise (e.g., C-136/17 GC v CNIL [77]). The Strasbourg Court and the CJEU have embraced each other’s jurisprudence in this context and it is likely that the outcome of the balancing exercise would be the same under both regimes.

Decisions of the Court of Human Rights are persuasive but not binding in domestic law but Articles 8 and 10 of the Convention are the “very content” of the tort of misuse of private information and a definitive decision on the balancing of these rights is one which the English courts are likely to follow.

Although the decision has attracted criticism from free speech campaigners such as Media Defence and Article 19 the Grand Chamber struck a careful balance between free speech and privacy rights. As noted above, the Grand Chamber considered that the obligation for a publisher to anonymise an article that had been published initially in a lawful manner fell within the “duties and responsibilities” of the press which are expressly referred to in Article 10(2). The decision confirms that media organisations need not proactively monitor their archives on an ongoing basis or go back and remove names from historical articles. As is the case under data protection law, they need only assess the competing rights and interests in response to a right to be forgotten request.

The judgment suggests that right to be forgotten requests/claims may be more likely to be regarded as proportionate (and thus succeed) where they are narrowly targeted to focus on getting an article anonymised rather than removed entirely. The case makes it clear that a person seeking to invoke the “right to be forgotten” in respect of media archives faces a substantial hurdle. This is likely to be difficult to overcome in the case of a public figure or someone involved in an event of historical significance.

Related Caselaw (self)

Source URL: Global Freedom of Expression

Collection

CIPIT
Columbia

Date Updated: Jan 30, 2024

Primary Documents

CASE-OF-HURBAIN-v.-BELGIUM-1.pdf
English
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CYRILLA: Global Digital Rights Law

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Hurbain v. Belgium

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