Previous 103 / 104 Next

HURBAIN v. BELGIUM JUDGMENT – SEPARATE OPINIONS but at least with the aim of examining whether such measures might better protect the private life of the person concerned (see, as regards the consideration of other available measures, Węgrzynowski and Smolczewski, cited above, §§ 12 and 66) and, if necessary, refusing his or her request for alteration of the digital archive. 24. Furthermore, it is apparent from the comparative-law survey that in several States measures that are less restrictive of freedom of expression have been examined by the competent courts and authorities, and that some supreme courts have not hesitated to set aside decisions of the lower courts which did not consider the possibility of graduated protection or intermediate measures less severe than the anonymisation or removal of an article in the online archives (see, for example, paragraphs 92, 121 and 132 of the judgment). In its own case-law the Court has also taken into consideration the fact that the applicants did not take any steps to compel the search engine operators to make the information concerning the applicants less easy to find (see Fuchsmann, § 53, and M.L. and W.W. v. Germany, § 114, both cited above) or to request that the information of which they complained be rectified (see Węgrzynowski and Smolczewski, cited above, §§ 66-67). 25. These considerations are especially important in the present case since G.’s grievance seems to have related not so much to the article published online on the news publisher’s website, but rather to its continued accessibility following the indexing of the content by search engines. Moreover, the applicant and the Government agreed that the delisting of content by search engines was, as a general rule, preferable to alteration of the archives (see paragraphs 145 and 154 of the judgment) as a means of protecting freedom of expression to the greatest extent possible. The Belgian courts did not take this factor into consideration in their reasoning, but confined themselves to examining a few alternative measures referred to by the parties (see paragraphs 245-247 of the judgment). However, G. had several other measures available to him which, while producing a similar outcome for him, would have been significantly less damaging to freedom of the press and to the integrity of the archives. 26. In the light of the increasing migration of the press towards digital technology and the proliferation of online news portals, I also believe that when a request for alteration of a press article archived on the Internet is being examined, the fact that the print version of the same article remains intact, as in the present case, is not a factor to be considered. This approach does not appear to be contradicted by the practice of the competent authorities in the Council of Europe member States (see paragraphs 91 and 132 of the judgment). Like its journalistic aim, the historical purpose of a press archive that contributes to the creation of a collective memory is not changed by the fact that it is in digital format. Accordingly, in my view, online archives should be afforded the same protection as other types of archives, including those in print form. The majority, however, in attempting to limit the impact 101

Select target paragraph3

● ● ●

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
Download View

CYRILLA: Global Digital Rights Law

Select target paragraph3

Hurbain v. Belgium

Primary Documents

Notifications