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HURBAIN v. BELGIUM JUDGMENT may have been of public relevance at the time, be forgotten. Of course, where the news report in question has been digitised and is stored in a media archive, the right to informational self-determination (Article 18 § 4 of the Constitution), as well as the right to privacy, is impaired.” 109. Referring to the Court’s case-law on the subject (Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), nos. 3002/03 and 23676/03, ECHR 2009), the Constitutional Court found that the media fulfilled a dual function in making their databases available to the general public. The first function was as guarantor of the plurality of information which was a cornerstone of democratic societies, and the second was their role in maintaining archives containing news that had previously been reported, which were extremely useful for historical research. Although both these functions were important for the free formation of public opinion, they did not warrant equivalent protection in terms of protecting freedom of information, since one of them was of primary importance and the other was secondary. This had a direct impact on the balancing exercise between freedom of information on the one hand and the protection of honour, privacy and personal data on the other. 110. The Constitutional Court then referred to the CJEU’s findings in Google Spain (C-131/12) (see paragraphs 71 et seq. above), according to which “that balance [between the fundamental rights at stake] may however depend, in specific cases, on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life” (paragraph 81). In the case at hand the public relevance of the information, which was available in the digital press archives, was liable to be called into question by the passage of time. While it was true that the topic covered in the news report had been, and continued to be, of considerable public interest in relation to the issues of drug addiction and drug trafficking, the fact remained that the data subjects had not been in the public eye at the time of the events or at the time of the judgment. 111. The Constitutional Court noted that the information in question concerned past events which had no impact on the present, and that its dissemination at the present time contributed little to the public debate. Moreover, the offence concerned had not been especially serious and had not had a particular impact on society at the time it was committed. Consequently, the interest which the criminal proceedings may have generated initially had disappeared completely thirty years after the events. By contrast, the damage caused by the dissemination in the present day of the information – the interest of which was confined to its status as archived journalistic content – in terms of the honour and privacy of the persons concerned and the protection of their personal data was particularly serious, given the severe damage which the information (involvement in an offence and drug 42

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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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