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HURBAIN v. BELGIUM JUDGMENT continued presence of the article in question in the archives undoubtedly caused harm to G. (vii)The impact of the measure on freedom of expression and more specifically on freedom of the press 240. The Court must now examine the Liège Court of Appeal’s assessment of the impact of the measure in question on freedom of expression and freedom of the press. To that end it must ascertain in particular whether the Court of Appeal, on the basis of a proper balancing between, on the one hand, G.’s interests and, on the other hand, those of the applicant relating to the performance of his task of imparting information and maintaining archives, limited the interference with the latter task to what was strictly necessary in order to protect the right to respect for private life asserted by G. 241. The Court notes that, in the light of technological developments in the digital sphere, European judicial practice has identified several types of measures aimed at protecting the reputation and rights of others in this context. The technical complexity of these measures and their impact on journalistic archives and/or access to information vary considerably. Thus, the following measures, among others, may be implemented by the operator of a search engine other than that of the content provider: (a) reorganisation of the search results so that the link to the website in question appears in a less prominent position in the list of results, or (b) complete or partial delisting (relating only to searches based on the name of the person concerned) through the removal of the link from the search engine’s index. Meanwhile, the publisher of a website can, for instance: (a) remove all or part of a text stored in the digital archive; (b) anonymise the details of the person referred to in the text; (c) add a note to the text, that is, update the text by means of digital rectification (where the information was inaccurate) or via an electronic communication (where the information was incomplete); (d) remove the article from the index of the website’s internal search engine; or (e) have the article de-indexed, either fully or partially (in relation only to searches based on the name of the person concerned), by external search engines, on the basis of access codes or directives issued to the search engine operators preventing their search programmes from crawling certain locations. 242. In view of the importance of the integrity of digital press archives (see paragraph 185 above), the Court considers that the national courts, in determining disputes of this kind and deciding which of the different measures sought by the person making the request to apply, must give preference to the measure that is both best suited to the aim pursued by that person – assuming that aim to be justified – and least restrictive of the press freedom which may be relied on by the publisher concerned. This assessment of the type of measure to be preferred may usefully be carried out in the light of the range of available measures listed in paragraph 241 above. Only 80

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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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