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Case Law, Strasbourg: Hurbain v Belgium, Order to anonymise newspaper archive did not violate Article 10 – Hugh Tomlinson QC and Aidan Wills

In the case of Hurbain v Belgium [2021] ECHR 544 (in French only), the European Court of Human Rights (Third Section), 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.

This is an important decision on the “right to be forgotten” under Article 8 of the Convention, particularly in respect of media archives. This is the second time that the Strasbourg Court has considered the right to be forgotten (we wrote about the Court’s judgment in the Article 8 case of ML & WW v Germany, 28 June 2018, in an earlier post).

Background

The applicant, Patrick Hurbain, is the president of the Rossel Group which owns one of Belgium’s leading French-language newspapers Le Soir. At the relevant time he was the managing editor of Le Soir.

In November 1994, Le Soir published an article reporting on a series of fatal car accidents which had occurred in a short period of time (“the Article”). It mentioned the full name of one of the drivers involved, “G”. G was convicted (of an unspecified criminal offence) for his involvement; that conviction was confirmed by an appellate court in 2000. Unlike under the Rehabilitation of Offences Act 1974 in the UK, in Belgian law the rehabilitation of offenders is not automatic – an application has to be made to a court. G made such an application, and this was granted by the Court of Appeal in November 2006. In Belgium being rehabilitated does not, however, prevent third parties from making reference to a conviction.

In 2008 the Le Soir created an electronic, searchable version of its archives from 1989 onwards (including the Article), which were freely available on its website. In 2010 G asked the newspaper to remove the Article from its archives or, failing that, to anonymise it by removing his name. G relied on the fact that the article appeared in response to a search on his name on Le Soir’s internal search engine and on Google Search. He explained that its availability was damaging to his reputation, particularly in his work as a doctor. The newspaper refused to accede to his request but indicated that it had asked Google to delist/deindex the article (that request never received a response).

In 2012 G sued Mr Hurbain (in his capacity as editor of Le Soir) to obtain the anonymisation of the article. His action was founded on the right to private life, which (under Belgian law) encompassed a right to be forgotten; he did not rely on the law of data protection. The tribunal of first instance granted most of his claim in 2013. In 2014 the Court of Appeal of Liege upheld (in French) this judgment. Mr Hurbain then appealed to Belgium’s Court of Cassation (the country’s highest court). This appeal was dismissed on 29 April 2016.  The judgment (in French), can be found here [pdf]. We had an Inforrm post about the Court of Cassation’s decision in 2016.

On 26 September 2016 Mr Hurbain lodged an application with the Strasbourg Court complaining that the order for anonymisation was a breach of Article 10. The Belgian government defended the decision of the domestic court; G intervened in the proceedings before the Strasbourg Court.

Judgment

It was not disputed that the civil judgment against Mr Hurbain ordering him to anonymise the disputed article constituted an “interference” with his rights under Article 10 of the Convention [74]. The court held that this interference was “prescribed by law” for the purposes of Article 10(2) [88]. Belgian law recognises a right to be forgotten as an integral part of the right to respect for private life, which flows from Article 8 of the Convention, Article 17 of the International Covenant on Civil and Political Rights and Article 22 of the Belgian Constitution. Article 1382 of the Civil Code serves as a basis for civil actions for alleged abuses of the freedom of the press [79] – [84]. The Court rejected the contention that it was not foreseeable that a newspaper could be liable for refusing to give effect to the right to be forgotten in respect of digital archives [85] – [87].

It was common ground that the interference pursued a legitimate aim and, as a result, the judgment is primarily concerned with whether the interference was “necessary in a democratic society”. This was a question of balancing the applicant’s rights under Article 10 and with G’s right to respect for private and family life under Article 8 of the Convention. That exercise is primarily a function of national courts, in respect of which states enjoy a margin of appreciation, subject to the supervision of the Strasbourg Court [96] – [97].

The Court noted that, unlike most of its cases concerning the balance between Articles 8 and 10, which relate to the initial publication of articles, in this case there was no dispute about the lawfulness of the initial publication of the Article in 1994 [98] – [99]. What was in issue was the making available of the Article in archives from 2008 onwards. The so-called “Axel Springer criteria” apply to this balancing exercise but the Court recognised that the relevance of some criteria may change with the passage of time [94], [104] (see Axel Springer v Germany [2012] ECHR 227)).

The Court noted that the rights of a person who has been the subject of a publication available on the internet have to be weighed against the right of the public to inform themselves about past events and contemporary history, in particular with the help of digital press archives (see ML and WW v Germany [104]) [101]. In this regard, the Court reaffirmed its recognition of the importance of digital press archives. It noted the possible chilling effect on the freedom of expression of an obligation to anonymise articles whose lawfulness was not called into question, and the ensuing risk that the press would abstain from archiving their articles and/or that the integrity of archives may be undermined [100] – [103].

In relation to the Axel Springer criteria:

(a) Contribution to a debate of general interest

The Court noted that archived articles contribute differently to debates of general interest when compared to the original publication of those articles. That is because they may contribute to historical research, teaching, and contextualising current events [105]. Nevertheless, the Court considered that in this case the domestic court had rightly observed that 20 years after the events in question, the naming of G (who was not a public figure) in the Article (which is about road safety) did not contribute to a debate of general interest [106] – [107].

(b) How well known is the person concerned and what is the subject of the report?

The Court took as its starting point the well-established proposition that a person cannot rely on Article 8 “to complain of damage to his reputation which foreseeably results from his own actions, such as the commission of a criminal offence” [108]. However, the Court went on to say that:

“this does not mean that a person who has in the past been the subject of a criminal conviction can never exercise the right to be forgotten, otherwise that right would be void of its substance. The Court considers that after a certain time has elapsed, a convicted person may have an interest in no longer being confronted with his act, with a view to his reintegration into society …  As the Court of Appeal stated, the electronic archiving of an article relating to the offence committed should not create for the person concerned a kind of “virtual criminal record” … . This is all the more so when, as in the present case, the person has served his sentence and has been rehabilitated” [109].

The Court emphasised 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 [110].

G was, the Court observed, a private person unknown to the general public at the time of his request for anonymisation (with that date and not date when the Article was first published being the relevant date). The Court considered it important that the acts for which G was convicted had not been the subject of any media coverage, except for the Article, and the case had not received any media attention either at the time of the accident or when the archived version was posted on the internet in 2008 [111].

(c)  Prior conduct of the person concerned in relation to the media

G had not at any time contacted the media. On the contrary, he had made every effort to stay out of the media spotlight.

(d)  Method of obtaining the information and its veracity

The facts contained in the Article were not disputed and its initial publication was lawful.

(e) Content, form and consequences of the publication

The Court reiterated that online communications and their content are far more likely than print publications to interfere with the exercise and enjoyment of fundamental rights and freedoms, and in particular the right to respect for private life [115]. Thus, the reproduction of material from the print media and of material from the internet could be governed by different rules. The same, the Court held, applies to the difference between paper archives and digital archives. The scope of the latter is much greater and the consequences for the private life of the named persons all the more serious, which consequences are amplified by search engines [116].

The Court took into account the fact that consulting archives required an active search by entering keywords on the newspaper’s archive site. The disputed article was not likely to attract the attention of internet users unless they were specifically looking for information G. But the Court considered it relevant that the Le Soir archives could accessed free of charge.

As regards the repercussions of the publication, a search on G’s name on the Le Soir’s website or on Google brought up the Article. On that basis the Belgian court had taken the view that keeping the Article online would cause indefinite and serious harm to G’s reputation, creating a “virtual criminal record”, despite his having served his sentence and been rehabilitated. The Court took the view that the assessment of the Belgian court on this point had not been arbitrary or manifestly unreasonable [117] – [122].

The judgment recognises that online searches for people by name have become common practice and such searches usually have nothing to do with any criminal proceedings or convictions against the person concerned. With this in mind, the Court emphasised the importance of ex-offenders having the opportunity (with the passage of time) to rebuild their life without being confronted with their errors of the past.

(f)  The severity of the sanction imposed

The Belgian court had found that the most effective way to ensure respect for G’s private life, without disproportionately affecting Mr Hurbain’s freedom of expression, would be to anonymise the article on the Le Soir’s website by replacing his full name with the letter “X”. The Strasbourg Court agreed.

The Court attached considerable weight to the fact that the nature of the measure imposed had ensured the integrity of the original article, because only the digital archives version would have to be anonymised. Anyone interested in the Article could still request access to it, even in digital form. It was significant, the Court held, that the Article itself had not been affected by the measure but merely its accessibility on Le Soir’s website [129]. The judges declined to consider whether the deindexing of the Article by search engine operators would have been a more appropriate way of striking the balance between the rights in issue; G had not made any such request [127].

The Court thus held that the domestic courts had been entitled to conclude that the interference with Mr Hurbain’s right to freedom of expression occasioned by the anonymisation order was necessary and proportionate [131] – [132]. There had therefore been no violation of Article 10.

Notwithstanding this conclusion, the Court emphasised that its decision should not be interpreted as meaning that there is an obligation for media organisations to check their archives on a systematic and ongoing basis. They are not required to examine archived articles, and weigh up the various rights at stake, unless they receive an express request [134].

Judge Pavli delivered a dissenting opinion in which he expresses concern about the wider consequences of the decision for journalistic archives. His judgment also contains a helpful review of national decisions on the right to be forgotten/right to erasure.

Comment

This is an important judgment on the application of the right to be forgotten under the Convention, particularly in the context of media archives. The decision contains powerful statements about the importance of archives, as well as the rehabilitation of ex-offenders and the significance of the right to be forgotten in this context.

A number of points arise from this case.

  1. The judgment re-confirms that there is an Article 8 “right to be forgotten” – in relation to matters such as old convictions which were once public but, with the passage of time, can properly be treated as private. As a matter of domestic law this means that an action for misuse of private information (a privacy claim) can be brought to assert the right to be forgotten (alongside or instead of a claim under the UK GDPR seeking the erasure of personal data). The outcome is, in general, likely to be same regardless of which cause of action is relied on (see below). A privacy claim may, in principle, however, offer some advantages to claimants seeking to exercise their right to be forgotten:
    1. A claimant could recover After-the-Event Insurance premiums from a defendant in a privacy claim; this is not possible in a data protection case.
    2. While such scenarios seem likely to be rare, a privacy claim could be brought in respect of information which is not personal data for the purposes of the UK GDPR, for example information contained in paper-only archives where the data has not undergone automated processing.
    3. It is possible that the defences/justifications may operate differently in the law of privacy, as compared to data protection. The second stage of the tort of misuse of private information entails the Court undertaking an objective balancing exercise. While that is also true of a claim relying on the right of erasure under Article 17 of the UK GDPR, a controller could rely on the journalistic purposes exemption in the Data Protection Act 2018 (paragraph 26 of Schedule 2). Under that exemption the subjective view of the controller (which must still be objectively reasonable) is relevant. They need not comply with an erasure request if they reasonably believe that continuing to publish, e.g., an article, is in the public interest and that to give effect to the request would be incompatible with journalistic purposes. While the point has not been tested, it is worth noting that the Court of Justice of the European Union (“CJEU”) has suggested that the Strasbourg Court’s Axel Springer criteria (see above), which require an objective assessment of the competing rights/interests, are likely apply in this context: C–345/17 Buivids v Datu valsts inspekcija [65] – [66]).
    4. The relatives of a deceased person could, in principle, rely on their own Article 8 rights to exercise the right to be forgotten in respect of information relating to the deceased (e.g., by analogy, Jakovljevic v Serbia (2020) application no. 5158/12). This could not be done under the law of data protection because the right to erasure can only exercised by a data subject and that cannot be done posthumously.

 

  1. The case confirms that (as under Article 17 of the GDPR), the right to be forgotten is of general application; it is exercisable against primary publishers as well as search engine operators.

 

  1. The judgment makes clear that in right to be forgotten cases, the well-established Axel Springer criteria will be used (with appropriate modifications) for the balancing of Article 8 and Article 10 rights. That approach is very similar (if not the same) 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 (subject to what is said above about the journalistic purposes exemption) it is likely that the outcome of the balancing exercise would be the same under both regimes (e.g., GC v CNIL [75] – [77]; ML v Germany [97]; Hurbain [42] – [51], [94] and [120]).

 

  1. 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.

 

  1. 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 (a) focus on getting an article anonymised rather than removed entirely, and (b) do not have the consequence of requiring all versions of an article to be amended or removed from an archive.

 

  1. Although the decision of the Belgian court was upheld, the case shows 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. The Court’s reasoning indicates that it may also be more difficult where there has been more widespread primary media reporting.

Hugh Tomlinson QC and Aidan Wills are members of the Matrix Chambers media and information practice group.

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