Media Defence intervenes in Strasbourg case on ‘the right to be forgotten’ and its impact on media archives

Media Defence, along with a number of NGOs, media houses, and academics, has filed a third-party intervention at the Grand Chamber of the European Court of Human Rights in the case of Hurbain v Belgium. The case concerns the application of the ‘right to be forgotten’ against a media outlet, Le Soir. Mr Hurbain is responsible for the publication of Le Soir, one of Belgium’s main French-speaking newspapers.

In an article published in 1994 the newspaper reported on a car accident caused by Mr G, resulting in the death of two people and the injury of three others. The article mentioned the full name of Mr G. He was convicted of these offences subsequently granted a pardon. In 2008 Le Soir made available, online and free of charge, its archive dating back to 1989, including the article concerning Mr G, who requested the article be removed from its archives or anonymised. In support of his claim, he argued that he was a physician, that the article appeared in the results of several search engines when his name was entered, and that this would impact his professional practice. After Le Soir refused, the Belgian courts ordered it to anonymise Mr G’s full name. Mr Hurbain then brought the case to the European Court of Human Rights, arguing that his right to freedom of expression had been violated.

In June 2021, a chamber of the European Court of Human Rights held that the order to anonymise the name of Mr G did not violate Mr Hurbain’s right to freedom of expression, because, among other things, Mr G was not a public figure and the archives allowed the public to access information relating to the criminal offence. The case has been referred to the Grand Chamber of the European Court of Human Rights which will conduct a hearing in March 2022.

The third-party intervention argues that the ‘right to be forgotten’ is now being applied in a way that represents a significant threat to the right to freedom of expression generally and press freedom in particular. It highlights how the ‘right to be forgotten’ has extended beyond its intended scope and the threat it now poses to the online media archive. In particular it focuses on the importance of media archives and public access to those archives, and on the fact that the ‘right to be forgotten’ is not expressly recognised in international human rights instruments or in national constitutions and its scope remains largely unclear.

Read the full intervention here.

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