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HURBAIN v. BELGIUM JUDGMENT specific features in order to secure the protection and promotion of the rights and freedoms concerned. (b) The case of Fuchsmann v. Germany (no. 71233/13, 19 October 2017) concerned the rejection by the German courts of an action brought in July 2002 by the applicant – an international businessman – seeking an injunction against certain statements that had been published about him in June 2001 in an article in the online edition of the New York Times, in which he had been accused of involvement in gold smuggling and embezzlement and of having links to Russian organised crime. The Court agreed with the German courts’ findings, observing that the article in question had contributed to a debate of public interest; that there had been a certain interest in the article since the applicant was a German businessman internationally active in the media sector; that it had a sufficient factual basis; that the journalist had complied fully with his journalistic duties and responsibilities; that the article had been free from polemical statements and insinuations; that the information disseminated had mainly concerned the applicant’s professional life; and that the consequences of the article in Germany had been limited. (c) The case of M.L. and W.W. v. Germany (cited above) concerned the refusal of the Federal Court of Justice to order three different media organisations to anonymise press files concerning the applicants’ conviction for the murder of a well-known actor, in which the applicants were referred to by their full names. In finding that there had been no violation of Article 8 of the Convention in respect of the applicants, the Court had regard to the following considerations: the fact that at the time the applicants’ requests for anonymisation were lodged the impugned reports had continued to contribute to a debate of public interest; the fact that the applicants were not simply private individuals unknown to the public; the applicants’ conduct with regard to the media, which they had approached after their conviction with a view to having the proceedings reopened; the fact that the reports had related the facts in an objective manner and without the intention to present the applicants in a disparaging way or to harm their reputation; and the limited accessibility of the information. 198. Only very recently did the Court examine a set of proceedings concerning the de-indexing of an article published by an online newspaper, in an application lodged under Article 10 of the Convention. In Biancardi (cited above), the applicant, the former editor-in-chief of an online newspaper, was held liable under civil law for having kept on his newspaper’s website an article from 2008 reporting on a fight in a restaurant and giving details of the criminal proceedings opened in that connection. The Court found that not only Internet search engine providers but also the administrators of newspaper or journalistic archives accessible through the Internet, such as the applicant, could be required to de-index documents. The Court held that there had been interference with the applicant’s right to impart information, guaranteed by the Convention, but that the interference had 68

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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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