Last Updated on June 22, 2021 by LawEuro
Information Note on the Court’s case-law 252
Hurbain v. Belgium – 57292/16
Judgment 22.6.2021 [Section III]
Freedom of expression
Freedom to impart information
Newspaper publisher required to anonymise, under the “right to be forgotten” of a driver who had caused a fatal accident, the online archived version of an article published twenty years previously: no violation
Facts – The applicant, publisher of a daily newspaper, was ordered by a civil judgment in 2013 to render anonymous the digital version of an article published in 1994 and added to the online archive in 2008, in order to respect an individual’s “right to be forgotten”. The article mentioned the full name of the individual, G., a driver who had caused a fatal road accident. The applicant’s appeals against the judgment were unsuccessful.
Law – Article 10:
The civil judgment ordering the applicant to anonymise an article had constituted interference with his Article 10 rights.
1. Whether the interference was lawful and pursued a legitimate aim
Belgian law recognised the right to be forgotten as an integral part of the right to respect for one’s private life. G. had been able to enjoy that right since the domestic courts had taken the view that the online access to the archived version of the article constituted a “fresh disclosure” of his criminal record. In addition, with reference to the CJEU’s ruling in Google Spain, the Court of Appeal had not treated newspaper publishers in the same way as search engines. It had only relied on that ruling in determining the weight to be attached to the right to be forgotten per se. Thus the interpretation by the domestic courts of the provisions on the protection of private life had been neither arbitrary nor manifestly unreasonable.
Under Article 1382 of the Civil Code there was an obligation for a person to make good any damage caused by his or her fault, including unjustified interference with a right. This provision served as the basis for civil actions for alleged abuse of press freedom. It followed that the order against the applicant had a foreseeable legal basis. The interference had therefore been “prescribed by law” and pursued the legitimate aim of protecting the reputation and rights of others, in this case G.’s right to respect for his private life.
2. Whether the interference had been necessary
As in M.L. and W.W. v. Germany, it was not the lawfulness of the article when it first appeared that was at issue in the present case but its availability on the Internet and the possibility of accessing it long after the facts.
The rights of an individual who had been the subject of an online publication had to be weighed against the public’s right to be informed about events of the past and contemporary history, in particular with the help of digital newspaper archives.
In this connection, the requirement for a publisher to anonymise an article whose lawfulness had not been questioned carried a risk of a chilling effect on press freedom, in other words the risk that the press might refrain from keeping certain news stories in its online archives or that it might omit individual elements from articles which might later become the subject of such a request.
Altering the archived version of an article would undermine the integrity of the archive and thus its very essence. Domestic courts therefore had to be particularly vigilant when granting a request for anonymisation or modification of the digital version of an archived article for the purposes of ensuring respect for a person’s private life.
That being said, the right to maintain online archives available to the public was not an absolute right. It had to be weighed against other rights. In that context, the criteria to be taken into account when making or keeping an archived publication available online were in principle the same as those used by the Court in the context of an initial publication. However, some of those criteria would be more or less relevant in the light of the circumstances of the case and the passage of time.
(a) Contribution to a debate of public interest:
The online publication of the article in question had no value in terms of newsworthiness. Twenty years after the events, the identity of an individual with no public profile did not add any value of general interest to the article, which only contributed statistically to a general debate on road safety.
(b) The reputation of the person concerned and the purpose of the article:
The digital archiving of an article relating to the offence committed could not be allowed to create a kind of “virtual criminal record” for the person concerned. This was all the more important where, as in the present case, the individual had served his or her sentence and had been formally rehabilitated.
G. had not been a holder of public office. He was a private person unknown to the general public at the time of his request for anonymisation. The facts for which he had been convicted had not been the subject of any media coverage, with the exception of the article in question, and the case had not received any media attention either at the time of the events reported or at the time the archived version of the article was made available on the Internet.
(c) The conduct of the person concerned with regard to the media:
At no time had G. contacted the media to publicise his situation, either when the article first appeared in 1994 or when it was made available online in 2008. It was clear from his letters to the newspaper requesting the deletion or anonymisation of the disputed article that, on the contrary, he had made every effort to stay out of the media spotlight.
(d) How the information was obtained and its veracity:
It was not disputed that the initial disclosure of the information in question had been lawful.
(e) The content, form and impact of the publication:
As to the content of the disputed article, it dealt with several road accidents which had taken place in 1994 in the space of a few days. The accident caused by G. was one of them.
As regards the form of the publication, websites were information and communication tools which were particularly different from print media, especially as regards their capacity to store and disseminate information. Online communications and their content were much more likely than paper-based publications to interfere with the exercise and enjoyment of fundamental rights and freedoms, in particular the right to respect for private life.
Reproduction of material from the print media and online material could be subject to different rules. The same applied to the difference between paper archives and digital archives. The scope of the latter was certainly much greater and the consequences for the private life of named individuals all the more serious, this being further amplified by search engines.
In terms of the extent of the dissemination of the archived version of the article, consulting such articles required an active search by entering keywords on the newspaper’s archive search page. Because of its location on the website, the article was not likely to attract the attention of Internet users unless they were specifically seeking information about G. The maintaining of access to the article had not sought to disseminate information about G. afresh.
However, at the time of G.’s request and throughout the domestic proceedings, the newspaper’s archives had been available free of charge.
The applicant had pointed out that the judgment had not been against the operator of a search engine but against the publisher of a newspaper whose archives were accessible online.
Like the CJEU, the Court accepted that different obligations could be applied to search engines and to publishers who were the source of the information at issue. It was also true that it was primarily because of search engines that information about individuals held by the media could easily be located by Internet users. However, it could not be overlooked that the fact that a newspaper posted an article on its website already had an impact on the visibility of the information. Thus, the initial interference with G.’s right to respect for his private life had stemmed from the applicant’s decision to publish that information on his website and, above all, to keep it available there, even if there had been no wish to attract public attention.
As to the repercussions of the publication, a simple search using G.’s first and last names on the newspaper’s search engine or on Google immediately brought up the article. The Court of Appeal had observed that its retention in the online archive was thus likely to cause indefinite and serious damage to G.’s reputation, creating for him, as had already been pointed out, a virtual criminal record, even though he had not only been convicted of the offence and had served his sentence, but had also been formally rehabilitated.
This assessment by the Court of Appeal had not been arbitrary or manifestly unreasonable. With the passage of time, a person should have the opportunity to reconstruct his life without being confronted with his past mistakes by members of the public. Name searches had become a common practice in today’s society, and more often than not someone would conduct such a search merely out of curiosity for reasons totally unrelated to any prosecution or conviction of the person concerned.
(f) The seriousness of the measure imposed on the applicant:
The addition of a de-indexing tag to the article by Le Soir, dereferencing of the article by search engines and other means less prejudicial to the applicant’s right to freedom of expression had not been relied on before the domestic courts.
The measure imposed on the applicant by the Court of Appeal had been to render the article on the Le Soir website anonymous by replacing G.’s surname and forename with the letter X. It had not been shown that it was technically impossible to modify the archived articles.
The nature of the measure imposed in this case ensured the integrity of the archived article as such, since it was only a matter of anonymising the online version of the article, the applicant being authorised to retain the original digital and paper archives. An interested person could always request access to the original version of the article, even in digital form. It was therefore not the article itself, but its accessibility on the website of the newspaper Le Soir, that had been affected by the measure.
In view of the above, the national courts had been entitled to conclude that the condition relating to the proportionality of the interference with the right to freedom of expression was satisfied.
The domestic courts had weighed in the balance G.’s right to respect for his private life, on the one hand, and the applicant’s right to freedom of expression, on the other, in accordance with the criteria laid down in the Court’s case-law. The Court of Appeal had attached particular weight to the damage sustained by G. on account of the online access to the article, having regard to the passage of time since the publication of the original article and the fact that the anonymisation of the article on the newspaper’s website left the archives themselves intact and constituted the most effective measure, among all those that could be envisaged in the present case, without disproportionately interfering with the applicant’s freedom of expression. The reasons given by the domestic courts had been relevant and sufficient. The Court did not find any serious reason why it should substitute its own opinion for that of the domestic courts or dismiss the result of their balancing exercise. The measure imposed could thus be regarded as proportionate to the legitimate aim pursued and as striking a fair balance between the competing rights at stake.
This conclusion could not be interpreted as involving an obligation for the media to check their archives on a systematic and permanent basis. Without overlooking their duty to respect private life at the time of the initial publication, when it came to the archiving of articles they would not be required to make such verification, and therefore to weigh up the various rights at stake, unless they received an express request to that effect.
(See also Österreichischer Rundfunk v. Austria, 35841/02, 7 December 2006, Legal summary; Węgrzynowski and Smolczewski v. Poland, 33846/07, 16 July 2013, Legal summary; Delfi AS v. Estonia [GC], 64569/09, 16 June 2015, Legal summary; Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], 931/13, 27 June 2017, Legal summary; M.L. and W.W. v. Germany, 60798/10 and 65599/10, 28 June 2018, Legal summary)