Previous 14 / 104 Next

HURBAIN v. BELGIUM JUDGMENT committed and the damage for which compensation is sought. The court cannot accept this reasoning. There is of necessity a causal link between [the applicant’s] wrongful decision to keep the article of 10 November 1994 online without anonymisation and the damage referred to above. Had that decision not been taken, search engines such as Google would not bring the existence of the impugned article to light and there would be no infringement of [G.]’s right to be forgotten and to the protection of his reputation.” 32. The Court of Appeal added the following: “... contrary to [the applicant]’s assertion, acceding to [G.]’s request does not confer on each and every individual a subjective right to rewrite history, nor does it make it possible to ‘falsify history’ or impose an ‘excessive burden of responsibility’ on [the applicant]. This court, like the lower court, is called upon to determine a specific dispute between two parties in the context of a one-off civil action for damages based on Article 1382 of the Civil Code, while seeking to ensure that a balance is struck between two competing fundamental rights claimed by the parties.” 33. Regarding the applicant’s argument that it was not possible to anonymise the article in the archives, the Liège Court of Appeal held as follows: “[The applicant] argues that the way in which his newspaper’s database works means that it is not possible to ‘alter’ archived articles ... In support of his claims, he submitted a report drawn up on 21 June 2013 by the newspaper’s technical department ... The report in question, which was prepared in tempore suspecto by technicians who are in a relationship of dependency with [the applicant], does not provide any guarantees of impartiality and has no probative value. Such a report cannot in itself suffice as prima facie evidence of the alleged impossibility such as to justify recourse to an expert assessment. Moreover, the report does not state that it would actually be impossible to implement the measure requested (anonymisation of the article), but simply refers to the risks and costs. The only reference to impossibility concerns the ‘physical impossibility of withdrawing the newspapers that have been sold, the collections that have been distributed, and the numerous copies of the content available in physical and digital format in the public domain’ ..., something that has not been requested in the context of the present action. The technical argument advanced by [the applicant] to support his assertion that the action against him is unfounded is therefore dismissed.” 34. Lastly, the Court of Appeal dismissed the cross-appeal lodged by G. in which he requested that an anonymised version of the judgment be sent to the parties and to possible third parties. 35. The applicant appealed on points of law. In one of his grounds of appeal he alleged a violation of Article 10 of the Convention. In particular, he argued that the “right to be forgotten” was not enshrined either in clear, precise and accessible domestic legislation or in a higher-ranking international rule, but was derived solely from the legal literature and case-law. He inferred from this that the Court of Appeal judgment had breached the requirement for the interference with the exercise of his right to freedom of expression to be lawful. The applicant further argued that the order for him to alter in the online archives the content of an article that had been published in the past and was available in the paper archives amounted to unjustified interference with his freedom of expression. In particular, he disputed the assertion that the fact of a publisher posting an article of this kind 12

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