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HURBAIN v. BELGIUM JUDGMENT newspaper’s digital archives, giving details of the detention of two individuals for drug trafficking. More than twenty years later, in 2009, after they had been released and rehabilitated, the individuals in question learnt that the article featured among the top results of a search based on their names carried out on the most commonly used search engines. In their statement of claim they sought (a) the removal or anonymisation of the information in the archives by El País and (b) the delisting, by the operators of search engines such as Google and by the newspaper itself, of the links to the article in question. Although the two lower Spanish courts upheld the applicants’ claims, the Supreme Court allowed the appeal lodged by the newspaper and dismissed the part of the action concerning the alteration of the web page and its de-indexing on the newspaper’s internal search engine. 107. The Constitutional Court was thus called upon to weigh up the various rights at stake, including the “right to be forgotten”, which it defined as an aspect of the fundamental right to protection against the processing of personal data. Although that right also operated as a safeguard for the protection of individuals’ privacy and their honour, to which it was closely linked, it was nevertheless an autonomous fundamental right. The court also took the view that the “right to be forgotten” was not absolute and that, as a general rule, freedom of information took precedence over the right to respect for private life and the right to informational self-determination, from which the “right to be forgotten” was derived. 108. The Constitutional Court stated that it would apply its settled case-law concerning the balancing of the right to respect for private life against freedom of information – an approach which was consistent with the Court’s case-law. However, two decisive criteria were to be added to that balancing exercise, bearing in mind that the protection of personal data was involved: these were the passage of time and the publication of the information in question on the Internet. After observing that the information in question was truthful and was a matter of public interest since it related to a criminal case, the Constitutional Court deemed it essential to qualify its previous case-law in some respects. It found as follows: “As previously stated, the public relevance of the information is determined both by the subject matter and by the situation of the person to whom it refers. But the interest in the information may also be linked to its ‘topicality’, that is to say, to the degree to which it relates directly to the present time. The subject or object of a news report may be relevant in the abstract, but if it refers to an event which took place many years ago and which is unconnected to current events, it may have lost some of its public interest or information value and may or may not have acquired historical, statistical or scientific interest. Despite their indisputable significance, these types of interest are not directly linked to the formation of free, informed and pluralist public opinion; rather, they are linked to the overall development of culture which, of course, underlies the formation of opinions. In such cases, therefore, this may call into question the precedence given to the right to information [Article 20 § 1 (d) of the Constitution] over the right to privacy [Article 18 § 1 of the Constitution] of a person who, after a certain amount of time has passed, opts to request that those data and that information, which 41

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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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