On 4 July 2023, the European Court of Human Rights (ECtHR) Grand Chamber delivered its judgment in the case of Hurbain v Belgium. The judgment upheld the lower chamber’s finding that an order to anonymise the subject of an article did not violate the publisher’s freedom of expression. Media Defence, along with a number of NGOs, media houses and academics, submitted a third-party intervention in the case.
In 1994, Belgian newspaper Le Soir published an article about a series of fatal road-traffic accidents in its print edition. That article referenced the name of the driver (‘G’) responsible for one of the car accidents which resulted in the death of two people, and injury to three others. G was convicted of offences in connection to the incident and subsequently pardoned.
In 2008, Le Soir digitalised its archive dating back to 1989, making it accessible online and free. The archive included the article concerning G, who asked Le Soir to remove it from the archives or anonymise it. In support of his claim, he argued that he was a doctor and when people searched his name online the article appeared in the results of several search engines which impacted his professional reputation and practice. Following Le Soir’s refusal to accede to G’s request, the Belgian courts ordered the newspaper to anonymise his full name. Mr Hurbain then brought the case to the ECtHR, arguing that the order violated his right to freedom of expression.
In June 2021, a chamber of the ECtHR held that the order to anonymise the name of G did not violate Mr Hurbain’s right to freedom of expression. The chamber’s decision held that the criteria to be considered regarding online publication or continued availability of archived material were, in principle, the same as those applied in the context of the initial publication. The Court further noted that these criteria were subject to change depending on the circumstances of the case and the passage of time. In September 2021, the case was referred to the Grand Chamber.
Alongside fifteen other organisations and academics, including Media Defence partners, we filed an intervention at the Grand Chamber. We argued that the current application of the ‘right to be forgotten’ poses a significant threat to the right to freedom of expression in general, and to press freedom in particular.
Specifically, the intervention argued that the permanent removal of information from a digital media archive was not a proportionate restriction on freedom of expression and will have a deleterious impact on the integrity of that archive, which is an essential component of newsgathering and reporting. As a result, any interference with the integrity of the media archive should be subject to the strictest scrutiny. The intervention also noted that the requirement to anonymise a news story, as opposed to de-listing or de-indexing, would fundamentally alter the digital archive, thereby impacting the historical record as well as effective and accurate newsgathering.
The Grand Chamber held by a majority that the order to anonymise the article did not violate Mr Hurbain’s right to freedom of expression. In doing so the Court introduced a new set of criteria to be considered when balancing the right to freedom of expression with the right to privacy: (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.
Taking those criteria into account, the Grand Chamber found that the archived piece had the effect of creating a “virtual criminal record” of G, especially considering the length of time that had passed since the incident. In those circumstances, the Court concluded that anonymisation would not impose an excessive burden on Mr Hurbain as publisher of Le Soir, while being the most effective way to protect G’s privacy.
In our view the Grand Chamber’s judgment represents a further (see Biancardi v Italy), and unnecessary, extension of the ‘right to be forgotten’, as originally conceived by the Court of Justice of the European Union in the Google Spain case, with the concomitant impact on press freedom generally and the media archive specifically. The newspaper article complained about concerned a road traffic incident and subsequent judicial proceedings that were reported on accurately. There was no evidence G had suffered any harm as a consequence of the existence of the article. In fact, the judgment relies on the finding of the domestic courts that the article created a ‘virtual criminal record’ but there was no examination of this assertion by the Court.
The Court’s finding also lacks proportionality, having regard to the impact this finding will have on the media archive generally. In his forceful dissent, Judge Ranzoni, joined by four other judges, noted the position of the third-party interveners on this point, and expressed concern that “an obligation to review at a later stage the lawfulness of keeping an article online following a request from a person claiming to be a victim of the situation entails the risk, inter alia, that the press may refrain in future from keeping reports in its online archives or that it will omit individualised elements in articles that are likely to be the subject of such a request at a later stage.”
Despite these significant threats to the media archive, it can be argued that the Court’s reasoning makes it difficult for anonymisation of articles by relying on the ‘right to be forgotten’ in cases involving high profile individuals, events of historical importance, and where there has been widespread reporting on a particular story.
For more information contact our Legal Director Pádraig Hughes at email@example.com
You can read our intervention here.
You can read the judgment here.
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