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HURBAIN v. BELGIUM JUDGMENT Commission on Data Processing and Civil Liberties (CNIL) concerning four decisions of the CNIL refusing to serve formal notice on Google Inc. to delist various links appearing in the lists of results displayed following searches based on their names. The links led to web pages published by third parties containing, among other things, a satirical photomontage placed online pseudonymously and depicting a female politician, as well as a number of articles referring respectively to the position held by one of the applicants as public relations officer of the Church of Scientology, the judicial investigation into a male politician and the conviction of one of the applicants for sexually assaulting children. The Conseil d’État put several questions to the CJEU concerning the interpretation of the rules under European Union (EU) law, seeking to establish in particular whether, regard being had to the specific responsibilities, powers and capabilities of the operators of search engines, the prohibition imposed on other controllers on processing certain special categories of data (relating, for instance, to political opinions, religious or philosophical beliefs, or sexual life) also applied to such operators. 82. After reiterating the findings made in its Google Spain judgment (see paragraphs 72-73 above), the CJEU emphasised that the GDPR, which had entered into force in the meantime, and in particular Article 17(3)(a) thereof, expressly required that a balance be struck between the fundamental rights to privacy and protection of personal data guaranteed by Articles 7 and 8 of the Charter on the one hand, and the fundamental right to freedom of information guaranteed by Article 11 of the Charter on the other. 83. The CJEU added that where the operator of a search engine received a request for delisting relating to a link to a web page on which sensitive data were published, the operator was required to ascertain, on the basis of all the relevant factors of the particular case and taking into account the seriousness of the interference with the data subject’s fundamental rights to privacy and protection of personal data, whether the inclusion of that link in the list of results displayed following a search on the basis of the data subject’s name was strictly necessary for protecting the freedom of information of Internet users potentially interested in accessing that web page by means of such a search. 84. Lastly, with regard to web pages containing data concerning criminal proceedings brought against a specific individual, the CJEU referred to this Court’s judgment in M.L. and W.W. v. Germany (nos. 60798/10 and 65599/10, 28 June 2018), from which it inferred the following: “77. It is thus for the operator of a search engine to assess, in the context of a request for de-referencing relating to links to web pages on which information is published relating to criminal proceedings brought against the data subject, concerning an earlier stage of the proceedings and no longer corresponding to the current situation, whether, in the light of all the circumstances of the case, such as, in particular, the nature and seriousness of the offence in question, the progress and the outcome of the proceedings, the time elapsed, the part played by the data subject in public life and his past conduct, 33

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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

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Hurbain v. Belgium

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