Précédent 16 / 104 Next

HURBAIN v. BELGIUM JUDGMENT After stating ... that the dispute concerned ‘an ... aspect’ of the right to be forgotten relating to ‘the possibility for an individual to request the erasure of data concerning him or her, and more specifically data posted online, after a given period’, ‘[t]he aim [being] no longer to prevent or punish the disclosure of past events, but to obtain the removal of information available on the Internet’, the contested judgment found that, by placing the impugned article online, ‘[the appellant] enabled [that] article ... to be given prominence via the search engine of the newspaper’s website, which [was] accessible free of charge. The effect [was] also multiplied significantly by the development of the “crawling” software used by Google-type search engines’. Thus, the contested judgment ruled lawfully that the online archiving of the article in question amounted to a fresh disclosure of the respondent’s previous conviction that was liable to infringe his right to be forgotten. In adding, on the basis of factual remarks weighing the respondent’s right to be forgotten against the appellant’s right to create historically accurate archives and the public’s right to consult them, that ‘[the respondent] satisfie[d] the criteria for claiming a right to be forgotten, and that keeping the article in question online without rendering it anonymous, many years after the events it reported on, [was] liable to cause him disproportionate harm when weighed against the benefits of strict observance of [the appellant]’s right to freedom of expression’, and that ‘the conditions of lawfulness, legitimacy and proportionality imposed by Article 10 § 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms in respect of any limitation of freedom of expression [were] satisfied in the present case’, the contested judgment provided legal justification for its ruling that the appellant, ‘by refusing, in the specific context of the case and without reasonable cause, to accede to the request for the article to be anonymised’, had committed a fault. It therefore lawfully ordered him to ‘replace the respondent’s first name and surname with the letter X in the ... version of the article dated ... featured on the website www.lesoir.be and in any other database for which he [was] responsible’ and to pay [the respondent] one euro in respect of non-pecuniary damage.” III. IMPLEMENTATION OF THE JUDGMENT OF 25 SEPTEMBER 2014 39. On 25 November 2014 G. brought proceedings against the applicant in the Liège Court of Appeal seeking an order for the applicant to pay a fine for failing to comply with the judgment of 25 September 2014, which had been served on the applicant on 7 November 2014. On 8 December 2014 the applicant informed the Court of Appeal that the version of the article in the online archives had been anonymised on 21 November 2014. 40. In a judgment of 19 March 2015 the Liège Court of Appeal dismissed the request for it to impose a fine, finding that this was not justified since the article had been anonymised in the meantime. However, the court noted, on the basis of the documents in the file, that the applicant “ha[d] demonstrated no readiness or resolve to implement the judgment”. It therefore ordered him to pay the costs incurred by G. in seeking to obtain enforcement of the judgment. 41. Following the anonymisation of the article a note was inserted beneath the online version, under the heading “Full version”, referring to the relevant judicial decision and to the possibility for anyone who so wished to consult 14

Sélectionner le paragraphe cible3

● ● ●

Hurbain v. Belgium

Case Law

Country

Belgium

Country Location

Latitude: 50.855421148205785

Longitude: 4.557127118111282

Country Location (Lié Case Law): Belgium

Decision Date: 4 juil. 2023

Case Status: Affaire Résolue

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 (self)

Source Name and URL: Global Freedom of Expression

Collection

CIPIT
Columbia

Date Updated: 30 janv. 2024

Documents principaux

CASE-OF-HURBAIN-v.-BELGIUM-1.pdf
English
Télécharger Vue

CYRILLA: Global Digital Rights Law

Sélectionner le paragraphe cible3

Hurbain v. Belgium

Documents principaux

Notifications