On 4 July 2023, in the case of Hurbain v Belgium (App No 57292) the Grand Chamber of the European Court of Human Rights upheld (by 12 votes to 5) the decision of the Third Section 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.

Background

The applicant, Patrick Hurbain, is the publisher of Le Soir.  In a 1994 print edition an article in Le Soir reported, among other things, on a car accident that had caused the death of two people and injured three others (“the Article”.  This mentioned the full name of the driver, Dr G, who was convicted in 2000. He served his sentence and was rehabilitated in 2006.

In 2008 the newspaper placed on its website an electronic version of its archives dating back to 1989 (including the Article). In 2010 Dr G contacted Le Soir, requesting that the article be removed from the newspaper’s electronic archives or at least anonymised. The request mentioned his profession and the fact that the article appeared among the results when his name was entered in several search engines.  The newspaper refused to remove the article.

In 2012 Dr 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 in Strasbourg, relying on Article 10 of the Convention  In a Chamber judgment of 22 June 2021 the Court held, by a majority (six votes to one), that there had been no violation of Article 10.   We had an Inforrm case comment on the decision.  The decision was referred to the Grand Chamber. A number of third parties were given leave to intervene in the written procedure before the Grand  Chamber including 16 different organisations and entities represented by the organisation Article 19, as well as the driver who was the subject of the article, who relied on the “right to be forgotten”.

In addition to considering the position in Belgium domestic law, the Grand Chamber considered Council of Europe Instruments ([60] to [66]), EU law including Google Spain and the subsequent “right to be forgotten” cases ([67] to [87]) and the law in France, ([94] to [100]), England and Wales ([101] to [105]), Spain ([106] to [112]), Germany ([113] to [130]) and Italy ([131] to [132]).

Judgment

Introduction

The question for the Court was whether the decisions of the Belgian courts ordering the applicant to anonymise the electronic version of the impugned article on the Le Soir website, on grounds of the “right to be forgotten”, amounted to a violation of freedom of expression under Article 10.  It was not disputed that the anonymisation order was an interference with Article 10 and the Grand Chamber agreed with the Chamber that the interference was “in accordance with law” and for a legitimate aim, namely the protection of the driver’s Article 8 rights.

 As regards terminology, the Court used 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 is archived [175] .

General Principles

The Grand Chamber reiterated the well known principles as to the importance of freed of expression ([176] to [179]}.  It noted previous decisions to the effect that

“in addition to its primary function as a “public watchdog”, the press has a secondary but nonetheless valuable role in maintaining archives containing news which has previously been reported and making them available to the public. In that connection the Court has held that Internet archives make a substantial contribution to preserving and making available news and information. Digital archives constitute an important source for education and historical research, particularly as they are readily accessible to the public and are generally free” [180]

In short, the integrity of digital press archives should be the guiding principle underlying any request for the removal or alteration of all or part of an archived article which contributes to the preservation of memory.

The Grand Chamber went on to note that the concept of a “right to forgotten” has many facets ([194]): it initially emerged in the context of republication by the press of previously disclosed information of a judicial nature but subsequently it was considered in the context of the digitisation of news articles and their wide availability via search engines ([194] and [195]).  The Grand Chamber concluded that

“from the standpoint of the Convention, the “right to be forgotten online” has been linked to Article 8, and more specifically to the right to respect for one’s reputation, irrespective of what measures are 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). In the Court’s view, a claim of entitlement to be forgotten does not amount to a self-standing right protected by the Convention and, to the extent that it is covered by Article 8, can concern only certain situations and items of information. In any event, the Court has not hitherto upheld any measure removing or altering information published lawfully for journalistic purposes and archived on the website of a news outlet” [199].

Criteria to be applied

In contrast to the Chamber, the Grand Chamber considered that the Axel Springer criteria for balancing Articles 8 and 10 (see Axel Springer v Germany [2012] ECHR 227)) were not applicable.  Rather, its assessment should take account of the different context of the a de-indexing case compared with cases concerning initial publication.  The Grand Chamber considered that the balancing of these various rights of equal value to be carried out in the context of a request to alter journalistic content that is archived online should take into account the following criteria:

“(i) the nature of the archived information; (ii) the time that has 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 is 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“.

Application to the Present Case

With regard to these criteria in the present case, the Grand Chamber held as follows:

(i)  As to the nature of the archived information:   It first had to be ascertained whether the information related to the private or professional life of the person concerned and whether it had a social impact or fell within the sphere of private life [214].  Data relating to criminal proceedings has been classified as “sensitive” [215].  However, the inclusion of individualised information in press articles about criminal proceedings does not in itself raise an issue under the Convention.

The Grand Chamber noted that the article in issue reported on a number of road-traffic accidents that had occurred in 1994, of which the accident caused by the driver in the present case was one. The facts reported on had been of a judicial nature and did not fall into the category of offences whose significance, owing to their seriousness, was unaltered by the passage of time. It also noted that the events had not been the subject of media coverage with the exception of the article in question [219].

(ii) Regarding the time that had elapsed since the events and since initial and online publication,  The relevance of information was linked to its topicality.   The passage of a significant length of time has an impact on the question whether a person should have a “right to be forgotten” [220]

The article in issue, which had been published in 1994, was placed online in the archives of the newspaper Le Soir in 2008.  A significant length of time (16 years) had elapsed between the initial publication of the article and the first request for anonymisation; in all, some 20 years had passed by the time of delivery of its judgment.  As a result, the driver, who had been rehabilitated in 2006, 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 [221].

(iii) As to the contemporary interest of the information.  It was necessary to consider whether the article in question continued to contribute to a debate of public interest: whether, at the time of the “right to be forgotten” request it had acquired any historical, research related or statistical interest [222].  But public interest cannot be reduced to the public’s thirst for information about private life or voyeurism [223]  However, because of the nature of digital press archives, which concern information which is rarely of topical relevance, current contribution to a debate of public interest is not decisive in most cases – historical and scientific purposes must also be considered [224].

The Court noted the Liège Court of Appeal’s finding that, 20 years after the events, 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. In the Court of Appeal’s view, the events reported on in the article were clearly not of historical significance either, as the article related to an unexceptional – albeit tragic – short news story which was not alleged, still less demonstrated, to have been a source of particular public concern. The Court saw no reason to question the duly reasoned assessment of the national court [225].

(iv)  As to the question whether the person claiming entitlement to be forgotten was well known, and his or her conduct since the events,  In general the role of the person who is the subject of a report is an important criterion when balancing rights – the extent to which an individual has a public profile influences the protection to be given to private life [226].   This must be assessed at the time the right to be forgotten request is made [227].  Conduct since the original article is relevant.

The Liège Court of Appeal had observed that the driver did not hold any public office. Hence, the mere fact that he was a doctor in no sense justified his continued identification in the online article some 20 years after the events. He was an individual unknown to the general public both at the time of the events and at the time of his request for anonymisation.  Moreover, there was nothing to suggest that he had made contact with the media in order to publicise his situation, either when the article first appeared in 1994 or when it was placed online in 2008. On the contrary, all the steps taken by him demonstrated a desire to stay out of the spotlight [230].

(v) With regard to 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 must be able to make a duly substantiated claim of serious harm to his or her private life [232].  It should be ascertained whether the person’s conviction has been removed from criminal records – there is a societal interest in rehabilitation.  However, rehabilitation cannot by itself justify a “right to be forgotten” [233].

The Liège Court of Appeal held that the electronic archiving of an article concerning the commission of an offence should not create a kind of “virtual criminal record” for the  driver, who had served his sentence and been rehabilitated. The Court of Appeal had observed that a simple search based on the driver’s first name and surname in the search engine of the website of Le Soir or on Google immediately brought up the article. In the Court of Appeal’s view, this was undoubtedly a source of harm to the driver, at least of a psychological nature. Such a situation made knowledge of his previous conviction readily accessible to a wide audience which – since he was a doctor – inevitably included patients, colleagues and acquaintances, and had thus been liable to stigmatise him, seriously damage his reputation and prevent him from reintegrating into society normally. There was no strong reason to call into question the duly reasoned decision of the Liège Court of Appeal [234].

(vi)  As to the degree of accessibility of the information in the digital archives.   Internet sites are an information tool distinct from the print media posing a higher risk of harm.  However, consulting newspaper archives required an active search. Degree of accessibility was an important factor – whether free of charge or confined to subscribers [236] to [238]

The domestic courts had observed that when they were placed online in 2008, the archives of the newspaper Le Soir had been available free of charge.  When the driver had made his request, and throughout the domestic proceedings, the archives had continued to be accessible without restrictions and free of charge. In view of this high degree of accessibility, the continued presence of the article in question in the archives had undoubtedly caused harm to the driver [239].

(vii) As to the impact of the measure on freedom of expression and more specifically on freedom of the press.  The Grand Chamber noted that, to protect the rights of others, a search engine operator could reorganise search results so that the link to the website in question appears in a less prominent position in the list of results, or  carry out  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.   Different measures were available to the content provider, including:
(a)  removal of all or part of a text stored in the digital archive;
(b)  anonymisation;
(c)  adding a note to the text;
(d)  removing the article from the index of the website’s internal search engine; or
(e)  having the article de-indexed, either fully or partially by external search engines. [241]

The Grand Chamber held that,  in determining disputes of this kind, preference should be given to the measure that is both best suited to the aim pursued by that person – assuming that aim to be justified – and least restrictive of the press freedom which may be relied on by the publisher concerned [242].

In this case, adding a note to the article was inappropriate as it would allow the stigmatising effect of the offences to persist indefinitely [245].   The Liège Court of Appeal had found that the most effective means of protecting the driver’s privacy without interfering to a disproportionate extent with the applicant’s freedom of expression was to anonymise the article on the website of Le Soir by replacing the driver’s first name and surname with the letter X.   The Grand Chamber noted that anonymisation is less detrimental to freedom of expression than the removal of an entire article. It noted that anonymisation constituted a particular means of altering archived material in that it concerned only the first name and surname of the person concerned and did not otherwise affect the content of the information conveyed [249].

The Court further noted that the Liège Court of Appeal had taken care to assess the implications of the measure for the driver, for the public who were entitled to have access to the information, and for the applicant. It had concluded that the fact of acceding to the driver’s request did not confer on each and every individual a subjective right to rewrite history, nor did it make it possible to “falsify history” or impose an “excessive burden of responsibility” on the applicant [250].

As to the importance to be attached to the integrity of the archives, the Liège Court of Appeal had made clear that the applicant had not been requested to remove the article from the
archives, but simply to render the electronic version anonymous. It had also stressed that the paper archives remained intact and that the applicant could still ensure the integrity of the original digital version. Hence 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 [251].

Lastly, regarding the possible 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, the Grand Chamber considered that such an obligation fell within the “duties and responsibilities” of the press and the limits which may be imposed on it [254].

Conclusion

The Grand Chamber t found that 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 of the Convention on account of the anonymisation of the electronic version of the article on the website of the newspaper Le Soir had been limited to what was strictly necessary. It could thus, in the circumstances of the case, be regarded as necessary in a democratic society and proportionate. . Accordingly, it found that there had been no violation of Article 10 of the Convention.

Separate opinions

Judge Krenc expressed a concurring opinion. Judge Ranzoni expressed a dissenting opinion, joined by Judges Kūris, Grozev, Eicke and Schembri Orland..

Comment

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.

Hugh Tomlinson KC is a member of the Matrix Chambers media and information practice group and editor of Inforrm.