Hurbain v. Belgium [GC]

Legal summary

June 2023

Hurbain v. Belgium [GC] - 57292/16

Judgment 4.7.2023 [GC]

Article 10

Article 10-1

Freedom of expression

Freedom to impart information

Newspaper publisher ordered to anonymise the online archived version of a lawful article published twenty years earlier, on grounds of the “right to be forgotten” of the individual responsible for a fatal accident: no violation

Facts – In 2013 the applicant, the publisher of a Belgian daily newspaper, was ordered in a civil judgment to anonymise, on grounds of the “right to be forgotten”, the electronic archived version of an article originally published in 1994 in the newspaper’s print edition and placed online in 2008. The article mentioned the full name of G., the driver responsible for a fatal road-traffic accident. The applicant appealed, without success.

In a judgment of 22 June 2021 (see Legal summary) a Chamber of the Court held, by six votes to one, that there had been no violation of Article 10. On 11 October 2021 the case was referred to the Grand Chamber at the applicant’s request.

Law – Article 10:

(1) Existence of interference “prescribed by law” and pursuing a “legitimate aim” – The order for the applicant to anonymise the archived version of the impugned article on the newspaper’s website amounted to interference with the exercise of his right to freedom of expression and press freedom. The interference had been “prescribed by law” and had pursued the legitimate aim of protecting the reputation or rights of others, in this case G.’s right to respect for his private life.

(2) Whether the interference was “necessary in a democratic society”  –

(a)  Preliminary considerations regarding the scope of the case and the terminology used –

The present case, unlike the great majority of previous cases concerning a conflict between the right to freedom of expression and the right to respect for private life, concerned solely the continued availability of the information on the Internet rather than its original publication per se. Furthermore, the original article had been published in a lawful and non-defamatory manner. Lastly, the case concerned a news report that had been published and subsequently archived on the website of a news outlet for the purposes of journalism, a matter going to the heart of freedom of expression.

With regard to the means deployed to give effect to the “right to be forgotten”, the Court would use the term “delisting” to refer to measures taken by search engine operators, and the term “de‑indexing” to denote measures put in place by the news publisher responsible for the website on which the article in question was archived.

(b) General principles –

(i) Article 10 and the protection of digital press archives – Internet archives made a substantial contribution to preserving and making available news and information. Furthermore, digital archives constituted an important source for education and historical research. This function of the press, like the corresponding legitimate interest of the public in accessing the archives, was undoubtedly protected by Article 10.

In Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), the Court had found that “the margin of appreciation afforded to States in striking the balance between the competing rights is likely to be greater where news archives of past events, rather than news reporting of current affairs, are concerned. In particular, the duty of the press to act in accordance with the principles of responsible journalism by ensuring the accuracy of historical, rather than perishable, information published is likely to be more stringent in the absence of any urgency in publishing the material.” However, those findings had to be interpreted with due regard to the particular context of that case, which had concerned the storage in a digital newspaper archive of articles that had been criticised as being defamatory and whose very accuracy had been called into question.

Over the past decade a consensus had emerged in Europe regarding the importance of press archives and of exceptions to the right to the erasure of personal data in that sphere. For the press to be able properly to perform its task of creating archives, it had to be able to establish and maintain comprehensive records. Since the role of archives was to ensure the continued availability of information that had been published lawfully at a certain point in time, they should, as a general rule, remain authentic, reliable and complete. Accordingly, the integrity of digital press archives should be the guiding principle underlying the examination of any request for the removal or alteration of all or part of an archived article which contributed to the preservation of memory, especially if, as in the present case, the lawfulness of the article had never been called into question. Such requests called for particular vigilance on the part of the national authorities and for thorough examination.

(ii) Article 8 and protection of the “right to be forgotten” – The reasoning of the national courts in the present case had focused on the “right to be forgotten” claimed by G. The “right to be forgotten” was based on the interest of an individual who was the subject of an online article in obtaining the erasure or alteration of, or the limitation of access to, past information that might have a far‑reaching negative impact on how he or she was currently perceived by public opinion. There was also a risk of other harmful effects: firstly, the aggregation of information, which could lead to the creation of a profile of the person concerned; and secondly, if the information was not placed in context, this could mean that an individual consulting an online article about another individual received a fragmented and distorted picture of the reality. Moreover, irrespective of the actual frequency of searches linked to a particular name, there was the constant threat and the resulting fear for that person of being unexpectedly confronted with his or her past actions or public statements at any time and in a variety of contexts such as, for instance, job-seeking and business relations. The question to be addressed by the Court was whether Article 8 afforded protection against those negative effects and, if so, to what extent.

The “right to be forgotten” had first emerged in the context of republication by the press of previously disclosed information of a judicial nature, and subsequently in the context of the digitisation of news articles, resulting in their widespread dissemination on the websites of the newspapers concerned. The effect of this dissemination was simultaneously magnified by the listing of websites by search engines. In such cases the issue was not the resurfacing of the information but rather its continued availability online. In this context, in addition to the right to respect for private life, the national courts and authorities in some European countries found support in the right to the protection of personal data.

In the context of the Court, the “right to be forgotten online” had been linked to Article 8, and more specifically to the right to respect for reputation, irrespective of what measures were sought for that purpose (the removal or alteration of a newspaper article in the online archives or the limitation of access to the article through de-indexing by a news outlet). A claim of entitlement to be forgotten did not amount to a self-standing right protected by the Convention and, to the extent that it was covered by Article 8, could concern only certain situations and items of information. The Court had not hitherto upheld any measure removing or altering information published lawfully for journalistic purposes and archived on the website of a news outlet.

(iii) The criteria to be applied by the Court – In order to resolve a conflict between the respective rights under Articles 10 and 8 of the Convention, the established criteria summarised in Axel Springer AG v. Germany (§§ 89-95) had been employed by the Court in cases concerning requests for the alteration of content stored in a digital press archive (Fuchsmann v. Germany, M.L and W.W. v. Germany). By contrast, in the recent case of Biancardi v. Italy, which concerned a request for the owner of an online newspaper to de-index an article, the Court had found that a new set of criteria needed to be taken into consideration, namely the length of time for which the article had been kept online, the sensitiveness of the data and the gravity of the sanction imposed.

The Grand Chamber considered that its assessment should take account of the specific nature of the present case, which lay in the fact that it concerned the electronic archived version of an article rather than the original version. Regard being had to the need to preserve the integrity of press archives, and also, to some extent, to the practice of the courts in the Council of Europe member State, the balancing of these various rights of equal value to be carried out in the context of a request to alter journalistic content that was archived online should take into account the following criteria: (i) the nature of the archived information; (ii) the time that had elapsed since the events and since the initial and online publication; (iii) the contemporary interest of the information; (iv) whether the person claiming entitlement to be forgotten was well known and his or her conduct since the events; (v) the negative repercussions of the continued availability of the information online; (vi) the degree of accessibility of the information in the digital archives; and (vii) the impact of the measure on freedom of expression and more specifically on freedom of the press.

In most instances several criteria would need to be taken into account simultaneously in order to determine the protection to be afforded to private life when set against the other interests at stake and against the means employed to give effect to that protection in a particular case. Thus, the protection of private life in the context of an assertion of entitlement to be forgotten could not be considered in isolation from the means by which it was implemented in practice. Seen from this perspective, it was a matter of carrying out a balancing exercise with a view to establishing whether or not, regard being had to the respective weight of the competing interests and the extent of the means employed in the specific case, the weight attributed either to the “right to be forgotten”, through the right to respect for private life, or to freedom of expression had been excessive.

In that context, in the case of M.L. and W.W. v. Germany, the Court – like the CJEU – had previously acknowledged that “the balancing of the interests at stake may result in different outcomes depending on whether a request for deletion concerns the original publisher of the information, whose activity is generally at the heart of what freedom of expression is intended to protect, or a search engine whose main interest is not in publishing the initial information about the person concerned, but in particular in facilitating identification of any available information on that person and establishing a profile of him or her …”

Furthermore, just as data subjects were not obliged to contact the original website, either beforehand or simultaneously, in order to exercise their rights vis-à-vis search engines, the examination of an action against the publisher of a news website could not be made contingent on a prior request for delisting. In the Court’s view, this distinction between the activities of search engine operators and those of news publishers retained its significance when the Court was examining any interference with freedom of expression, including the public’s right to receive information, based on a claim of entitlement to be forgotten.

Lastly, the chilling effect on freedom of the press stemming from the obligation for a publisher to anonymise an article that had been published initially in a lawful manner could not be ignored. Nevertheless, content providers were required to assess and weigh up the interests in terms of freedom of expression and respect for private life only where the person concerned made an express request to that effect. In that regard, in order for Article 8 to come into play, an attack on a person’s reputation stemming from the continued online availability of an archived article had to attain a certain level of seriousness, which had to be duly substantiated by the person making such a request.

Accordingly, although in the context of a balancing exercise between the right to freedom of expression and the right to respect for private life those two rights were to be regarded as being of equal value, it did not follow that the criteria to be applied in conducting that exercise all carried the same weight. The principle of preservation of the integrity of press archives had to be upheld, which implied ensuring that the alteration and, a fortiori, the removal of archived content was limited to what was strictly necessary, so as to prevent any chilling effect such measures might have on the performance by the press of its task of imparting information and maintaining archives. Hence, in applying the above-mentioned criteria, particular attention was to be paid to properly balancing, on the one hand, the interests of the individuals requesting the alteration or removal of an article concerning them in the press archives and, on the other hand, the impact of such requests on the news publishers concerned and also, as the case might be, on the functioning of the press as described above.

(c) Application to the present case – The Court examined whether the assessment carried out by the domestic courts was consistent with the new criteria set out above.

(i) The nature of the archived information – It was necessary to ascertain whether the information related to the private, professional or public life of the person concerned and whether it had a social impact, or whether it fell within the intimate sphere of private life and was therefore particularly sensitive. In its recent case-law the Court had characterised data relating to criminal proceedings as sensitive.

In the case of press articles about criminal proceedings, the inclusion of individualised information such as the full name of the person concerned was an important aspect and did not in itself raise an issue under the Convention, either at the time of initial publication or at the time of entry in the online archives.

As the facts reported on in the present case were of a judicial nature, the relevant criterion was the nature and seriousness of the offence that was the subject of the original article. Those facts, although tragic, did not fall into the category of offences whose significance, owing to their seriousness, was unaltered by the passage of time. Furthermore, the case had not attracted widespread publicity.

(ii)  The time elapsing since the events and since initial and online publication – In the present case a significant length of time (sixteen years) had elapsed between the initial publication of the article and the first request for anonymisation. In those circumstances, G., who had been rehabilitated, had had a legitimate interest after all that time in seeking to be allowed to reintegrate into society without being permanently reminded of his past.

(iii) The contemporary interest of the information – It had to be ascertained whether the article in question continued to contribute to a debate of public interest, whether it had acquired any historical, research-related or statistical interest and whether it remained relevant for the purposes of placing recent events in context in order to understand them better. That assessment was to be conducted from the perspective of the time when the person concerned submitted his or her request concerning the “right to be forgotten”. An article’s contribution to a debate of public interest might persist over time, either because of the information itself or because of new factors arising since publication. However, owing to the specific nature of digital press archives, which concerned information that was rarely of topical relevance, their current contribution to a debate of public interest was not decisive in most cases. In the absence of a contribution to such a debate, it also had to be ascertained whether the archived information was of interest for any other (historical or scientific) purpose.

The Court did not question the duly reasoned assessment of the national court; it found that, twenty years after events that were clearly not of historical significance, the identity of a person who was not a public figure did not add to the public interest of the article, which merely made a statistical contribution to a public debate on road safety.

(iv)  Whether the person claiming entitlement to be forgotten was well known, and his or her conduct since the events – The question whether the person concerned was well known should be examined in the light of the circumstances of the case and from the perspective of the time when the “right to be forgotten” request was made. The person’s public profile might predate the facts reported on in the impugned article or be contemporaneous with them. Furthermore, while a person’s public profile might diminish over time, he or she might also return to the limelight at a later stage for a variety of reasons. The person’s conduct since the events that were the subject of the original article might also justify refusing a “right to be forgotten” request in some situations. Conversely, the fact of staying out of the media spotlight might weigh in favour of protecting a person’s reputation.

The case of G., an individual who was unknown to the public and had not sought the limelight, had not attracted widespread publicity either at the time of the events reported on or when the archived version of the article had been placed online.

(v) The negative repercussions of the continued availability of the information online – In order to justify the alteration of an article stored in a digital press archive, the person concerned had to be able to make a duly substantiated claim of serious harm to his or her private life. With regard to judicial information, it was important in assessing the damage to the person concerned to take into account the consequences of the continued availability of the information for that person’s reintegration into society. It should be ascertained, in close conjunction with the length of time that had elapsed since the information was published, whether the person’s conviction had been removed from the criminal records and he or she had been rehabilitated, bearing in mind that what was at stake was not just the interest of the convicted person but also that of society itself, and that individuals who had been convicted could legitimately aspire to being fully reintegrated into society once their sentence had been served. Nevertheless, the fact that a person had been rehabilitated could not by itself justify recognising a “right to be forgotten”.

The Court did not call into question the duly reasoned decision of the Court of Appeal, which found that the presence of the article in the online archives had been liable to stigmatise G., who was a doctor, and to seriously damage his reputation in the eyes of his patients and colleagues in particular and prevent him from reintegrating into society normally.

(vi) The degree of accessibility of the information in the digital archives – It had to be borne in mind that in the absence of an active search (using keywords), an article contained in the digital archives was not, as such, likely to attract the attention of Internet users who were not looking for precise information concerning a particular person. It was also important to ascertain the degree of accessibility of the archived article, that is, whether it was available without restrictions and free of charge or whether access was confined to subscribers or otherwise restricted. In the present case, the continued presence of the article in question in the archives, which had been accessible without restrictions and free of charge since being placed online, had undoubtedly caused harm to G.

(vii) The impact of the measure on freedom of expression and more specifically on freedom of the press – In view of the importance of the integrity of digital press archives the national courts, in determining disputes of this kind and deciding which of the different measures sought by the person making the request to apply, should give preference to the measure that was both best suited to the aim pursued by that person – assuming it to be justified – and least restrictive of the press freedom which could be relied on by the publisher concerned. Only measures which met that twofold objective could be ordered, even if this involved dismissing the action of the person making the request. That assessment could usefully be carried out in the light of the range of measures available. For instance, the following measures, among others, could be implemented by the operator of a search engine other than that of the content provider: (a) reorganisation of the search results so that the link to the website in question appeared in a less prominent position in the list of results, or (b) complete or partial delisting (relating only to searches based on the name of the person concerned) through the removal of the link from the search engine’s index. Meanwhile, the publisher of a website could, for instance: (a) remove all or part of a text stored in the digital archive; (b) anonymise the details of the person referred to in the text; (c) add a notice to the text, that is, update the text by means of digital rectification (where the information was inaccurate) or via an electronic communication (where the information was incomplete); (d) remove the article from the index of the website’s internal search engine; or (e) have the article de-indexed, either fully or partially (in relation only to searches based on the name of the person concerned), by external search engines, on the basis of access codes or directives issued to the search engine operators preventing their search programmes from crawling certain locations.

After reviewing the measures that might be considered in order to balance the rights at stake – a review whose scope was consistent with the procedural standards applicable in Belgium – the national courts had held that the most effective means of protecting G.’s privacy without interfering to a disproportionate extent with the applicant’s freedom of expression was to anonymise the article on the newspaper’s website. They had taken into consideration the importance to be attached to the integrity of the archives. The original, non-anonymised, version of the article was still available in print form and could be consulted by any person who was interested, thus fulfilling its inherent role as an archive record.

For its part, the Court had previously held that anonymisation was less detrimental to freedom of expression than the removal of an entire article. It concerned only the first name and surname of the person concerned and did not otherwise affect the content of the information conveyed. The obligation for a publisher to anonymise an article that had been published initially in a lawful manner might in principle fall within the “duties and responsibilities” of the press and the limits which could be imposed on it. In the present case, it did not appear from the file that the anonymisation order had had a real impact on the performance by the newspaper of its journalistic tasks.

(d) Conclusion – Regard being had to the States’ margin of appreciation, the national courts had carefully balanced the rights at stake in accordance with the requirements of the Convention, such that the interference with the right guaranteed by Article 10 had been limited to what was strictly necessary and could thus, in the circumstances of the case, be regarded as necessary in a democratic society and proportionate.

Conclusion: no violation (twelve votes to five).

(See also Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), 3002/03 and 23676/03, 10 March 2009, Legal summary; Axel Springer AG v. Germany [GC], 39954/08, 7 February 2012, Legal summary; Węgrzynowski and Smolczewski v. Poland, 33846/07, 16 July 2013, Legal summary; Fuchsmann v. Germany, 71233/13, 19 October 2017 ; M.L. and W.W. v. Germany, 60798/10 and 65599/10, 28 June 2018, Legal summary; Biancardi v. Italy, 77419/16, 25 November 2021, Legal summary; and also Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data; Recommendation No. R (2000) 13 of the Committee of Ministers to member states on a European policy on access to archives, adopted on 13 July 2000; Recommendation CM/Rec(2012)3 of the Committee of Ministers to member States on the protection of human rights with regard to search engines, adopted on 4 April 2012; Google Spain SL and Google Inc. against Agencia Española de Protección de Datos (AEPD) and Mario Costeja González, judgment of 13 May 2014, C‑131/12; Guidelines on the implementation of the court of justice of the European Union judgment on “Google Spain SL and Google Inc. v. Agencia Española de Protección de Datos (AEPD) and Mario Costeja González” C-131/12, adopted on 26 November 2014 by the “Article 29” Data Protection Working Group; Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data; Convention 108 +, Convention for the protection of individuals with regard to the processing of personal data of 18 May 2018)

 

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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