Le Soir newspaper ordered to anonymise identity of rehabilitated offender to respect his right to be forgotten: no violation of freedom of expression
JUDGMENT
Hurbain v. Belguim 22.6.2021 (app. no. 57292/16)
SUMMARY
Right to be forgotten and journalistic freedom. The case concerned a political decision against the applicant, in his capacity as editor-in-chief of the newspaper Le Soir, which ordered that the name of a driver responsible for a fatal car accident in 1994 not be mentioned in an online article. The order was based on his right person in oblivion.
The Court specifically noted that, according to the Court of Appeal, a search of the newspaper’s website or Google, simply by entering the name and surname of the relevant guide, immediately brought up that article. The domestic court was of the opinion that the retention of this article on the internet could cause indefinite and serious damage to the driver’s reputation, creating a “Virtual Criminal Record”, when he had not only served the sentence after an irrevocable conviction, but had also rejoined society. It had thus considered that the most effective way to ensure respect for privacy, without disproportionately affecting the applicant’s freedom of expression, would be to not include his personal data in the article on the newspaper’s website, replacing the full letter X.
The Belgian courts had weighed the driver’s right to respect for his privacy, on the one hand, and the applicant’s freedom of expression, on the other, in accordance with the criteria laid down in the case-law of the Court. The Court of Appeal examined, in particular, the damage suffered by the driver due to the fact that the article was published on the internet, taking into account the passage of time (approximately 20 years) from its initial publication and the fact that the personal data was not published on the website. of Le Soir would not affect the text of the original article and would be the most effective and proportionate measure, among the various options. The reasons given by the national courts were therefore relevant and sufficient, and the measure imposed on the applicant could be regarded as proportionate to the legitimate aim pursued (driver’s right to privacy) and to strike a fair balance between the rights at stake .
The Court clarified that the conclusion reached in the present case did not include any obligation for the media to inspect their files on a systematic and permanent basis. With regard to the archiving of articles, they will not be required to make such a verification, weighing the various rights at stake, unless they expressly request it.
The ECtHR ruled, by a majority (6 votes to 1), that there had been no violation of freedom of expression (Article 10 of the ECHR).
PROVISION
Article 10
PRINCIPAL FACTS
The applicant, Patrick Hurbain, is a Belgian national who was born in 1959 and lives in Genappe
(Belgium). He is the publisher of Le Soir, one of Belgium’s leading French-language newspapers In a 1994 print edition, an article in Le Soir reported on a car accident that had caused the death of two people and injured three others. The article mentioned the full name of the driver, who was
convicted in 2000. He served his sentence and was rehabilitated in 2006.
In 2008 the newspaper created an electronic version of its archives from 1989 onwards (including
the above-mentioned article), which became freely available on its website. In 2010 the driver
applied to 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 hits when his name was entered in several search engines.
In 2011 the newspaper’s legal department refused to remove the article from its archives, but
indicated that it had given notice to the administrator of the search engine Google to dereference
the article. Before the domestic courts, Mr Hurbain argued that those steps remained pending.
In 2012 the driver sued Mr Hurbain to obtain the anonymisation of the press article about him. In
2013 the court of first instance granted most of the driver’s claims. In 2014 the Court of Appeal
upheld this judgment. Mr Hurbain then appealed on points of law, but his appeal was dismissed in
2016.
Relying on Article 10, Mr Hurbain complained that he had been ordered to anonymise the archived
version of an article on his newspaper’s website.
THE DECISION OF THE COURT…
Article 10 (freedom of expression)
The Court observed 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.
It further noted that the interference was “prescribed by law”. Belgian law recognised a right to be
forgotten as an integral part of the right to respect for private life (Article 8 of the Convention,
Article 17 of the International Covenant on Civil and Political Rights and Article 22 of the Belgian
Constitution, these being the main provisions relied upon by the Court of Appeal in recognising the
driver’s right to be forgotten). In addition, Article 1382 of the Civil Code served as a basis for civil
actions for alleged abuses of the freedom of the press.
In addition, the interference pursued a legitimate aim within the meaning of Article 10 of the
Convention, namely the protection of the reputation and rights of others (in this case, the right to
respect for the private life of the driver concerned).
As to whether the interference had been necessary, the Court made the following points, among
others.
The Court of Appeal had rightly observed that the online article was of no value in terms of
newsworthiness; 20 years after the events, the identity of a person who was not a public figure did
not enhance the public interest of the disputed article, which merely contributed to a general
debate on road safety at a statistical level.
With the passage of time, a convicted offender might have an interest in no longer being confronted
with his or her offence, to ensure reintegration into society. As the Court of Appeal had stated, the
electronic archiving of an article about the offence must not create a kind of “virtual criminal record”
for the person concerned. This was particularly true where, as in the present case, the individual had
served his or her sentence and had been rehabilitated.
The Court of Appeal had pointed out that the driver did not hold any public office. He was a private
person unknown to the general public at the time of his request for anonymisation. The facts for
which he was convicted had not been the subject of any media coverage, except for the article in
question, 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. Furthermore, the driver had not at any time
contacted the media to publicise his situation, neither when the article had been published in 1994
nor when it had been posted online in 2008. On the contrary, he had made every effort to stay out
of the media spotlight.
Online communications and their content were far more likely than print publications to interfere
with the exercise and enjoyment of fundamental rights and freedoms, in particular the right to
respect for private life. Thus, the reproduction of material from the print media and of material from
the Internet could be governed by different rules. The same applied to the difference between paper
archives and digital archives. The scope of the latter was indeed much greater and the consequences
for the private life of the named persons all the more serious, causing harm that was further
amplified by search engines.
The Court took into account the fact that consulting archives required an active search by entering
keywords on the newspaper’s archive site. Owing to its location on the website, the disputed article
was not likely to attract the attention of Internet users unless they were specifically looking for
information about the driver. The Court did not call into question the purpose of giving access to the
disputed article, which had not been to propagate information about the driver afresh. It noted,
however, that at the time of the driver’s request and throughout the domestic proceedings, the
archives of the newspaper Le Soir had been available to all free of charge.
As regards the repercussions of the publication, the Court of Appeal had noted that a search on the
newspaper’s website or on Google, just by entering the individual’s first name and surname,
immediately brought up the article in question. That court had taken the view that to keep the
article online could cause indefinite and serious harm to the driver’s reputation. As already pointed
out, it had given him a “virtual criminal record”, whereas he had not only served his sentence after a
final conviction but had also been rehabilitated. The Court took the view that the assessment of the
Court of Appeal on this point had not been arbitrary or manifestly unreasonable. With the passage
of time, a person should have the opportunity to rebuild his or her life without being confronted
with errors of the past by members of the public. Online searches for people by name had become
common practice in contemporary society and such searches usually had nothing to do with any
criminal proceedings or convictions against the person concerned.
As to the seriousness of the measure imposed on the applicant, the Court of Appeal had found that
the most effective way to ensure respect for the driver’s private life, without disproportionately
affecting Mr Hurbain’s freedom of expression, would be to anonymise the article on the
newspaper’s website by replacing the individual’s full name with the letter X.
The Court attached weight to the fact that the nature of the measure imposed had ensured the
integrity of the original article, because only the online version would have to be anonymised. Mr
Hurbain had been authorised to retain the original print and electronic archives. In other words
anyone interested in the original article could still request access to it, even in electronic form. Thus
the article itself had not been affected by the measure but merely its accessibility on the
newspaper’s website.
The Court thus found that the domestic courts had been entitled to conclude that the requirement
of proportionality of the interference with Mr Hurbain’s right to freedom of expression had been
met. The courts had weighed up the driver’s right to respect for his private life, on the one hand, and
Mr Hurbain’s freedom of expression, on the other, in accordance with the criteria laid down in the
Court’s case-law. In particular, the Court of Appeal had considered the harm sustained by the driver
on account of the article being online, having regard to the passage of time (about 20 years) since its
original publication and to the fact that its anonymisation on the website of Le Soir would not affect
the text of the original article and would be the most effective and proportionate measure, among
the various possible options.
The reasons given by the domestic courts had thus been relevant and sufficient, and the measure
imposed on Mr Hurbain could be regarded as proportionate to the legitimate aim pursued and as
striking a fair balance between the competing rights at stake. There had therefore been no violation
of Article 10 in the present case.
The Court explained that the conclusion it had reached in the present case could not be interpreted
as entailing any obligation for the media to check their archives on a systematic and permanent
basis. Without prejudice to their duty to respect private life at the time of the initial publication,
when it came to the archiving of articles they would not be required to make such verification, and
therefore to weigh up the various rights at stake, unless they received an express request to that
effect.
Separate opinion
Judge Pavli expressed a dissenting opinion, which is annexed to the judgment.
