The line between right to be forgotten and freedom of expression

In the case of Hurbain v. Belgium (application no. 57292/16, 22.06.2021) the European Court of Human Rights held that there had been: no violation of Article 10 (freedom of expression) of the European Convention on Human Rights.

The case concerned a civil judgment against Mr Hurbain, in his capacity as publisher of the daily newspaper Le Soir, ordering him to anonymise an article in its electronic archive which 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.

The Court noted in particular that, according to the Court of Appeal, a search on the newspaper’s website or on Google, just by entering the first name and surname of the driver concerned, immediately brought up the article in question. The domestic court had taken the view that to keep the article online could cause indefinite and serious harm to the driver’s reputation, giving him a “virtual criminal record”, when he had not only served his sentence after a final conviction but had also been rehabilitated. It had thus found that the most effective way to ensure respect for his 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 Belgian 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. The Court of Appeal had, in particular, 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 Soirwould 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 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 (right to respect for the driver’s private life) and as striking a fair balance between the competing rights at stake.

The Court explained that the conclusion it had reached in the present case did not involve any obligation for the media to check their archives on a systematic and permanent basis. With regard 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.

References from the official website of the European Court of Human Rights