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HURBAIN v. BELGIUM JUDGMENT (iv) the respective weight accorded to these two fundamental freedoms would depend on the nature of the personal data. 99. These judgments dealt with three categories of personal data: (a) data deemed to be sensitive (those which represented the greatest intrusion into a person’s life, concerning matters such as his or her health, sexual life, political opinions or religious beliefs); (b) data concerning criminal matters (judicial proceedings or a criminal conviction); and (c) data which concerned a person’s private life but were not sensitive. The first two categories attracted the highest degree of protection: a request for the delisting of data which were sensitive or concerned criminal matters could only lawfully be refused if access to those data through a search based on the name of the person making the request was strictly necessary for the purpose of informing the public. In the case of the third category, the existence of an overriding public interest in having access to the information in question was sufficient. 100. The Conseil d’État held that the criteria to be taken into account in weighing up the rights at stake were: the characteristics of the personal data in question (nature, content, degree of objectivity, accuracy, source, the circumstances and timing of their publication online and the repercussions of the listing of the information for the person concerned); the role within society of the person making the request (whether he or she was well known and his or her role in public life and within society); and the circumstances in which the information had been made public (for instance, whether this was done by the person concerned of his or her own accord) and continued to be available. C. Judgment of the High Court of England and Wales (QB) of 13 April 2018 in NT1 and NT2 v. Google LLC [2018] EWHC 799 101. The case concerned two businessmen who had submitted requests to Google for the delisting of several links to press articles concerning controversial property deals in connection with which they had been convicted. The first businessman (NT1) was convicted of criminal conspiracy in the late 1990s and sentenced to a prison term. He was released on licence, and was rehabilitated following a retrospective change to the law in 2014. The second businessman (NT2) was convicted of criminal conspiracy in the early 2000s and served six weeks in custody before being released on licence. 102. In examining the “right to be forgotten”, the High Court referred to CJEU’s Google Spain judgment (C-131/12) (see paragraphs 71 et seq. above) and to the Guidelines on the implementation of that judgment (see paragraph 76 above). The High Court performed a balancing exercise based on the principle of equal ranking between the rights to privacy and to the protection of personal data on the one hand and freedom of expression and information on the other. It found this principle to be consistent with the findings of the CJEU, which had not implied that in cases of this kind the public’s interest in 39

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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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