In this post, Hugh Tomlinson QC discusses the implications of a ruling in the Belgian justice system for the application of the “right to be forgotten” for news organisations. Tomlinson is a member of Matrix Chambers and an editor of the Inforrm blog. The post was first published on the Inforrm blog and is cross-posted here with permission. 

In the case of Olivier G v Le Soir (29 April 2016, n° C.15.0052.F [pdf]) the Belgian Court of Cassation decided that, as the result of the “right to be forgotten”, a newspaper had been properly ordered to anonymise the online version of a 1994 article concerning a fatal road traffic accident.

The applicant had been convicted of a drink driving offence as a result of the accident but his conviction was spent and the continued online publication of his name was a violation of his Article 8 rights which outweighed the Article 10 rights of the newspaper and the public.

Background

The applicant is a medical doctor.  On 6 November 1994 he was driving whilst drunk and caused a serious accident in which two people died. The Belgian newspaper ‘Le Soir’ had published an article containing the full name of the driver.

The applicant was convicted of drunk driving.  His conviction was the subject of a “rehabilitation decision” on 23 November 2006.

In 2008, Le Soir made part of its archives freely available online, including the 1994 article. Searches on the applicant’s name on the Le Soir website or on Google produced a link to the 1994 article.

In 2010, the driver asked the Editor in Chief of Le Soir, Patrick H to anonymise the article. This request was refused and in 2010 the applicant applied to the Belgium courts for an order that the article be anonymised.

This order was granted by the trial court on 25 January 2013.  It ordered Le Soir to replace the applicant’s name with the letter “X” in the article.

On 25 September 2014, the Court of Appeal in Liege dismissed the newspaper’s appeal against the judgment.

The Court of Appeal held that both parties enjoyed fundamental rights: Le Soir had a right to freedom of expression under Article 10 and the applicant had a right to respect for private life under Article 8.  These two rights were of equal value. It had also held that the “right to be forgotten” was an intrinsic part of the right to respect for private life.

It held

• The disclosure of the facts of the 1994 accident had no news value.
• The applicant exercised no public functions.
• Removing the applicant’s name and surname had no impact on the essence of the information in the article which concerned a tragic accident due to alcohol.
• The arguments based on the necessity of perserving the complete and faithful character of archives were dismissed.  The claim was simply to anonymise the electronic version of the article – the paper archives remained intact.
• There was no public interest in knowing the identity of a person responsible for a road accident nearly 20 years ago.

Le Soir applied to the Court of Cassation seeking to have the judgment set aside.

Judgment

After dismissing various procedural objections to the judgment, the Court of Cassation considered the substance of the appeal.

The Court of Cassation noted that whilst Article 10 gave the press the right to online archives, and the public the right to access those archives, those rights were not absolute.

It agreed that Article 8 (as well as Article 17 of the ICCPR) included the right to be forgotten which permitted a person found guilty of a crime, to oppose in some circumstances his criminal past being disclosed to the public.  This could, in some circumstances, justify an interference with the right to freedom of expression.

Digital archiving of an article which was originally lawfully published is not exempt from the application of the right to be forgotten.  The interferences with freedom of expression justified by the right to be forgotten can include the alteration of an archived text.

The Court of Appeal had correctly decided that the archiving of the article online constituted a new disclosure of a previous conviction which could interfere with his right to be forgotten.

Balancing the right to be forgotten and the right of the newspaper to constitute archives corresponding to historical truth and of the public to consult these, the applicant should benefit from the right to be forgotten.  As the Court of Appeal held, the maintenance of the online article, many years after the events it describes, is likely to cause the applicant disproportionate damage compared to the benefits of the strict respect for freedom of expression.

The Court of Appeal had been entitled to refer to the Google Spain case in the CJEU – even though it had been decided after the conclusion of the hearing.

Comment

This is an important case in relation to online archives and “spent convictions”.  It was not based on data protection and the reasoning of the CJEU in Google Spain ([2014] 1 QB 1022).  Although the Google Spain case was mentioned, in passing, in the judgment of the Court of Appeal it was not relied on as part of its reasoning.

Instead, the case was based on the implied Article 8 right to be forgotten (what we might call the right for a spent conviction to be regarded as “private”).  The Belgian courts balanced the Article 10 rights of the press (and the public) against the Article 8 right to be forgotten.  It was held that twenty years after the accident, the rights of the rehabilitated offender – who was not a public figure – prevailed.  As a result, the anonymisation of the online version of the article complained of was ordered.

This is the first case that I am aware of in which a Court has ordered that an online archive should be anonymised – as opposed to the less drastic remedy of ordering the newspaper to take steps to ensure that the article was not indexed by search engines.  The Belgian courts were not impressed by arguments in favour of keeping the integrity of online archives.

The case can be contrasted with the decision of the Spanish Supreme Court in A and B v Ediciones El Pais (see my case comment here) – in which an order removing names from the online article was overturned.  In that case, the court made an order which had the effect of removing the article from search engines such as Google – with it remaining available online in its original form.

The cases were obviously argued very differently and it is not clear whether any argument concerning a less drastic remedy was addressed to the Belgian courts.  The remedy of “anonymisation” was, in this case, relatively straightforward as Dr Olivier G only appears to have been mentioned in passing in the article complained of.  A different article may have produced a different remedy.

The English courts have yet to engage with the issue as to whether and to what extent “rehabilitated offenders” should be protected from continuing online dissemination of information about their spent convictions.  There are powerful arguments – under both data protection and privacy law – that such protection should be provided in appropriate cases.  Online news archives do not possess any “absolute immunity” – they are regularly amended in defamation cases – and effective privacy protection may sometimes require their amendment.  It remains to be seen how the English courts will deal with these issues.