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HURBAIN v. BELGIUM JUDGMENT – SEPARATE OPINIONS in full (deemed compatible with Article 8 in the case of M.L. and W.W. v. Germany, nos. 60798/10 and 65599/10, 28 June 2018). The other options consist in the de-indexing of the article (found to be compatible with Article 10 of the Convention in Biancardi v. Italy, no. 77419/16, 25 November 2021), its alteration (an approach dismissed in Fuchsmann v. Germany, no. 71233/13, 19 October 2017, under Article 8) or the addition of a notice (deemed compatible with Article 10 in Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), nos. 3002/03 and 23676/03, ECHR 2009). I note that in each of the cases cited above the Court endorsed the choice made by the national authorities, although the measures in question differed in each case. 15. The present case concerns a different measure on which the Court had not previously ruled, namely the anonymisation of digital archived content accessible to the public. As observed in the present judgment (see paragraph 249), the measure in question is specific and limited. It relates solely to the first name and surname of the person concerned and does not affect the remainder of the information conveyed. It concerns personal data which form part of the inner core of private life but which may, in some cases, be essential to the information conveyed. 16. Allow me to note in passing that our Court is no stranger to the practice of anonymisation. An applicant may in fact request and obtain anonymity, even after the decision or judgment has been delivered, where anonymisation is necessary in order to guarantee his or her safety or privacy2. Such cases of anonymisation are not uncommon in practice. 17. In the present case it should be noted that the Liège Court of Appeal gave lengthy reasons for its judgment in the light of the Convention. After identifying the conflicting rights it carried out a detailed balancing exercise, subject to review by the Court of Cassation, which in substance met the criteria defined by the Court in the present judgment. 18. In my view, a clear distinction needs to be made between the continued online availability of the article on the one hand and G.’s continued identification in that article on the other. Was the article of 10 November 1994, entitled “Série noire dans le Tournaisis : cinq morts en quatre jours” (“Series of tragic accident in the Tournai area: five deaths in four days”) of contemporary or historical interest when G. submitted his request to the domestic courts in 2012? That is open to doubt. However, the fact that the article was not of such interest does nothing whatsoever to diminish the seriousness of the acts for which G. was convicted and subsequently rehabilitated. Let me be quite clear about that. See, in this regard, the practice direction issued by the President of the Court on 14 January 2010. 2 89

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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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