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HURBAIN v. BELGIUM JUDGMENT 57. Specific types of data processing may entail a particular risk for data subjects independently of the context of the processing. ... Similar risks occur with the processing of data related to criminal offences (which includes suspected offences), criminal convictions (based on criminal law and in the framework of criminal proceedings) and related security measures (involving deprivation of liberty for instance) which require the provision of appropriate safeguards for the rights and freedoms of data subjects.” Article 11 – Exceptions and restrictions “96. Littera b. concerns the rights and fundamental freedoms of private parties, such as those of the data subject himself or herself (for example when a data subject’s vital interests are threatened because he or she is missing) or of third parties, such as freedom of expression, including freedom of journalistic, academic, artistic or literary expression, and the right to receive and impart information, confidentiality of correspondence and communications, or business or commercial secrecy and other legally protected secrets. This should apply in particular to processing of personal data in the audio-visual field and in news archives and press libraries. In order to take account of the importance of the right to freedom of expression in every democratic society, it is necessary to interpret notions relating to that freedom, such as journalism, broadly. 97. The second paragraph leaves open the possibility of restricting the provisions set out in Articles 8 and 9 with regard to certain data processing carried out for archiving purposes in the public interest, scientific or historical research purposes, or statistical purposes which pose no recognisable risk of infringement to the rights and fundamental freedoms of data subjects. For instance, this could be the case with the use of data for statistical work, in the public and private fields alike, in so far as this data is published in aggregate form and provided that appropriate data protection safeguards are in place (see paragraph 50).” B. Recommendation No. R (2000) 13 of the Committee of Ministers 63. In Recommendation No. R (2000) 13 to member States on a European policy on access to archives, adopted on 13 July 2000 at the 717th meeting of the Ministers’ Deputies, the Committee of Ministers considered that archives constituted an essential and irreplaceable element of culture, contributing to the survival of human memory. It noted the complexity of problems concerning access to archives at both national and international level due to the variety of constitutional and legal frameworks, the conflicting requirements of transparency and secrecy, the protection of privacy and access to historical information, all of which were perceived differently by public opinion in each country. The Committee of Ministers recommended that the governments of the member States take the necessary measures and steps to enact legislation on access to archives inspired by the principles outlined in the Appendix to the Recommendation, or to bring existing legislation into line with the same principles. The relevant passages of the Appendix to the Recommendation read as follows: 20

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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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