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HURBAIN v. BELGIUM JUDGMENT 2. For processing carried out for journalistic purposes or the purpose of academic artistic or literary expression, Member States shall provide for exemptions or derogations ... if they are necessary to reconcile the right to the protection of personal data with the freedom of expression and information. ...” 70. On 7 July 2020 the European Data Protection Board adopted Guidelines 5/2019 on the criteria of the Right to be Forgotten in the search engines cases under the GDPR. The Guidelines observe that the “right to be forgotten” was especially enacted under Article 17 GDPR to take into account the right to request delisting established in the CJEU’s Google Spain judgment (C-131/12). The relevant parts dealing with the processing necessary for exercising the right to freedom of expression and information read, in particular, as follows: “50. The Court [of Justice of the European Union] also distinguished between the legitimacy that a web publisher can have to disseminate information against the legitimacy of the search engine provider. The Court recognised that the activity of a web publisher can be undertaken exclusively for the purposes of journalism, in which case the web publisher would benefit from the exemptions that Member States could establish in these cases on the basis of Article 9 of the Directive (currently, Article 85.2 GDPR). In this regard, in the judgment ‘M.L. and W.W. vs Germany’ of June 28th, 2018, the ECHR indicates that the balancing of the interests at issue may lead to different results depending on the request at stake (distinguishing (i) a request for erasure brought against the original publisher whose activity is at the heart of what freedom of expression aims to protect from (ii) a request brought against the search engine whose first interest is not to publish the original information on the data subject but notably to enable identifying any available information on this person and thus establishing his or her profile). 51. Those considerations should be assessed in respect of Article 17 GDPR complaints as in those decisions, the rights of the data subjects that have requested the delisting must be weighed with the interests of Internet users to access the information.” C. Relevant case-law of the CJEU and related guidelines 1. Google Spain SL and Google Inc. v. Agencia Española de Protección de Datos (AEPD) and Mario Costeja González (judgment of 13 May 2014, C-131/12, EU:C:2014:317) 71. In the case of Google Spain SL and Google Inc. (hereafter “Google Spain”), the CJEU was called upon to define the extent of the rights and obligations arising out of Directive 95/46/EC with regard to Internet search engines. The case originated in a complaint lodged by a Spanish national with the Spanish Data Protection Agency against a Spanish daily newspaper and Google. The applicant had complained that when an Internet user entered his name in Google’s search engine, the list of results displayed links to two pages of the newspaper mentioning his name in connection with an auction following attachment proceedings. He had requested the newspaper either to remove or alter those pages so that the personal data 27

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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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