ARTICLE 19 is disappointed with the decision today by the Grand Chamber of the European Court of Human Rights (the European Court) in the ‘right to be forgotten’ case concerning media archives. In the case concerning the Belgian newspaper Le Soir, the Court found the media outlet could be required to anonymise legitimate information in its media archives.
This decision sets a negative precedent for protection of freedom of expression and media freedom in the region and beyond. Media archives serve an important function for both the media and for the public. Interfering with the integrity of the archives and applying the ‘right to be forgotten’ against them is akin to rewriting history and can have serious impacts on freedom of expression and access to information.
The decision in Hurbain v. Belgium concerned a civil judgement against Mr Hurbain in his capacity as publisher of the daily newspaper Le Soir, which ordered him to anonymise an article in the paper’s electronic archive that mentioned the full name of a driver who had been responsible for a deadly road accident in 1994. The order was based on the individual’s ‘right to be forgotten’.
In June 2021, the European Court held that the order to anonymise the name of the individual in the media archives did not violate Mr Hurbain’s right to freedom of expression. However, the case was appealed to the Grand Chamber, the highest judicial body of the European Court, which delivered its decision this afternoon.
Barbora Bukovská, ARTICLE 19’s Senior Director for Law and Policy, commented:
‘With this decision, the European Court has effectively approved the re-writing of history. Media archives are a key source for the media, education, and historical research. Requiring newspapers to routinely anonymise articles in their digital archives will inhibit the investigative work of journalists and other actors and put them under constant fear of litigation over their previous legitimate publications.
‘The expansion of the “right to be forgotten” to newspaper articles goes far beyond the original scope of this “right”.
‘Despite the lack of a definitive framework on the “right to be forgotten” in Europe, it has been mostly limited to search engines and not applied to digital media archives so far. Even when courts have expanded “the right to be forgotten” and associated privacy rights to newspapers and publishers of the original content, they have not ordered the original information to be completely erased. Sadly, after today’s decision, this will no longer be the case.
‘Although the European Court listed the criteria under which the requests for anonymisation should be assessed, there is a real danger that this decision might lead to a great amount of requests to media outlets and online archives to have content removed, altered, or anonymised. This can create enormous or additional administrative burdens for certain media outlets and archives and significant vulnerabilities from over-reactive requests for removal.
‘Ours are not just hypothetical concerns. For instance, the case of Italian news outlet PrimaDaNoi – which was ordered to delete a two-year old article by national courts – triggered a series of similar requests, including 240 legal demands, 40 of which ended up in court. Given the high costs of litigation in these cases, PrimaDaNoi had to close. We can only hope that this will not be replicated against other media outlets in Europe following today’s decision of the Grand Chamber of the European Court.’
In January 2022, ARTICLE 19, together with 15 civil society organisations, experts and media outlets, including The Guardian and The Times, intervened in the case.
The case concerns Le Soir newspaper, which in 1994 published an article about a fatal car accident that led to a conviction of the driver, Mr G. In 2008, the newspaper digitised its archives from 1989 onwards (including the article about Mr. G.’s accident), which became freely available on its website. In 2010, Mr G requested that the newspaper remove the article from its media archives or else remove his name. After Le Soir refused, Mr G. sued its editor, Mr Patrick Hurbain.
Mr G. argued that he was a physician and that his (prospective) patients could easily find the information about him through an online search. The Belgian courts ordered Le Soir to anonymise his full name in the disputed article. Mr Hurbain then brought the case to the European Court, arguing the violation of his right to freedom of expression.
Today, the Grand Chamber of the European Court ruled that the Belgian courts properly concluded that ‘the anonymisation of the article did not impose an excessive and impracticable burden’ on the newspapers and publishers. It also found that Belgian 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’.
Although the European Court recognised the importance of integrity of media archives and that ‘as a general rule, remain authentic, reliable and complete’, it outlined the conditions under which these could be interfered with, in order to balance freedom of expression and privacy:
- The nature of the archived information;
- The time that had elapsed since the events and since initial and online publication;
- Contemporary interest of the information;
- Whether the person claiming ‘the right to be forgotten’ was well known, and their conduct since the events;
- The negative repercussions of the continued availability of the information online;
- The degree of accessibility of the information in the digital archives, and;
- The impact of the measure on freedom of expression and press freedom.
Importantly, five judges – Carlo Ranzoni (Liechtenstein), Yonko Grozev (Bulgaria), Tim Eicke (the United Kingdom), Egidijus Kūris (Lithuania), and Lorraine Schembri Orland (Malta) – joined a dissenting opinion against this decision.
ARTICLE 19 will further study and analyse the decision to determine the implications for media freedom in Council of Europe countries and beyond.
At this stage, we note that the ‘right to be forgotten’ is not an international legal standard. It came to the fore with the decision of the Court of Justice of the European Union (the CJEU) in Google Spain in which the CJEU held that data protection principles apply to the publication of search results of search engines. It held that individuals should be able to ask search engines operating in the EU to delist search results obtained by a search of their name if the links were ‘inadequate, irrelevant or no longer relevant, or excessive’. The scope of the ‘right to be forgotten’ was limited in a number of ways, including to search engines.
Subsequently, the ‘right to be forgotten’ was formalised in Article 17 of the EU General Data Protection Regulation (GDPR), which provides for ‘the right to erasure’. However, exceptions are provided for exercising the right of freedom of expression and information as well as ‘for processing carried out for journalistic purposes’ (Article 85 of the GDPR).
In most EU countries, the right to erasure does not apply to data processed for journalistic purposes, although there is some variation on how the exemption is applied. Outside of the EU, the ‘right to be forgotten’ is not expressly recognised in international human rights instruments or in national constitutions. Its scope remains largely undefined.
For ARTICLE 19’s policy on ‘the right to be forgotten’, check here.