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HURBAIN v. BELGIUM JUDGMENT – SEPARATE OPINIONS II. Alternative approach (A) Factors to be taken into consideration 5. The Grand Chamber’s task in this case was to determine what value it should attach to online press archives, but also to media archives in general. Do we wish to allow a situation in which the media are required in future, on a virtually permanent basis, to make subsequent changes to articles that were originally published in a lawful manner? What would the consequences be? I believe, in particular, that if the media were to face a constant threat of being compelled to alter the content of previously published material, they would feel obliged to display far greater restraint in their coverage of events. They would also have a powerful incentive to agree to requests for the alteration of archived information in order to avoid costly court proceedings and the risk of being on the losing side in those proceedings. All these factors would undermine the role of the press as defined by the Court’s settled case-law and would undoubtedly have a chilling effect, as observed by the Court, for instance, in M.L. and W.W. v. Germany (nos. 60798/10 and 65599/10, §§ 103-104, 28 June 2018), in which it referred to “[the] risk that the press might refrain from keeping reports in its online archives or that it would omit individualised elements in reports”. As far back as the judgment in Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2) (nos. 3002/03 and 23676/03, § 27, ECHR 2009), the Court had stressed that the maintenance of archives was “a critical aspect of [the Internet’s] role”. In Węgrzynowski and Smolczewski v. Poland (no. 33846/07, § 65, 16 July 2013) it went further still, referring to the risk of “rewriting history”, even in the context of material that was defamatory, which is not the situation in the present case. 6. Accordingly – and especially in the current geopolitical and social climate – the Court should be reinforcing press freedom and the importance attached to online press archives rather than weakening them. In that connection it should protect the collective memory and hence the “right to remember” and not, on the contrary, jeopardise it by giving precedence to the “right to be forgotten” using inappropriate and disproportionate means. 7. The alternative approach proposed here is wholly consistent with the trends emerging in numerous member States, in which claims of entitlement to be forgotten are being made with increasing frequency. These trends result from a combination of the lasting presence of information on the Internet and the functionalities of search engines. It should be borne in mind that what defines the parameters of the current debate on what is termed “the right to be forgotten”, and triggers the increasing number of requests for protection of privacy, is primarily the power of search engines to make information accessible. Without those search engines the framework of the debate would be entirely different. There is therefore a need to highlight this reality and especially to emphasise that the search engines should, accordingly, be the 96

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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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