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HURBAIN v. BELGIUM JUDGMENT online in a digital archive, in similar fashion to a library making an archived article available, constituted fresh disclosure for the purposes of the domestic courts’ case-law. 36. In a judgment of 29 April 2016 the Court of Cassation dismissed the appeal on points of law. It found that the applicant’s argument that the Court of Appeal had derived the “right to be forgotten” online solely from the legal literature and case-law, to which it had attributed general regulatory scope, failed on factual grounds. The Court of Cassation held as follows: “... It follows [from] the reasoning [of the Court of Appeal judgment], firstly, that the judgment under challenge regards the right to be forgotten online as an ‘intrinsic component of the right to respect for private life’ (and indeed states so), and views such interference with the right to freedom of expression as may be justified in order to protect that right as being based not on the legal literature and case-law – which the judgment does not recognise as having general regulatory scope – but on Article 8 of the [Convention], Article 17 of the International Covenant on Civil and Political Rights and Article 22 of the Constitution; and, secondly, that it refers to the judgment of the Court of Justice of the European Union only to lend support to its view on the scope of that right to be forgotten.” 37. The Court of Cassation further noted that the Court of Appeal had not based the “right to be forgotten online” on the European or domestic provisions concerning the protection of individuals with regard to the processing of personal data, namely EU Directive 95/46/EC (see paragraph 68 below) and the Belgian Act of 8 December 1992 (see paragraph 49 below). 38. The Court of Cassation also held as follows: “While Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 19 of the International Covenant on Civil and Political Rights, which protect freedom of expression and, accordingly, press freedom, give the print media the right to place digital archives online and give members of the public the right to access those archives, these rights are not absolute and may in some circumstances, within the strict limits laid down by those treaty provisions, yield to other rights that are also worthy of respect. The right to respect for private life, which is guaranteed by Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 17 of the International Covenant on Civil and Political Rights and Article 22 of the Constitution, and which – as acknowledged in this limb of the ground of appeal – encompasses the right to be forgotten, allowing an individual found guilty of an offence to object in some circumstances to his or her previous convictions being made public once more through fresh disclosure of the facts, may justify interference with the right to freedom of expression. The digital archiving of an old press article which, at the time it was printed, reported lawfully on past events that are now covered by the right to be forgotten, so construed, is not exempt from possible interference with the right to freedom of expression in order to protect the right to be forgotten. Such interference may consist in altering the archived text so as to prevent or make good a breach of the right to be forgotten. 13

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Hurbain v. Belgium

Case Law

Country

Belgium

Country Location

Latitud: 50.855421148205785

Longitud: 4.557127118111282

Country Location (vinculado Case Law): Belgium

Decision Date: 4 jul 2023

Case Status: Cerrado

Case Outcome (Procedural)

Inadmissible
Motion Denied

Case Outcome (Disposition)

Injunction or Order 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: 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

Source Name and URL: Global Freedom of Expression

Collection

CIPIT
Columbia

Date Updated: 30 ene 2024

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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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