November 26, 2021
Sarah de Heer
Admittedly, the right to erasure, or more colloquially, the right to be forgotten is nothing new in the European legal landscape. Indeed, this right can be found as far back as 1981 in the predecessor of the Modernised Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (CETS No. 108) (Convention 108+). Moreover, the European Court of Human Rights (‘ECtHR’ or ‘the Court’) has developed a settled body of case law on the right to be forgotten, illustrating that the Contracting Parties to the European Convention of Human Rights (ECHR or ‘the Convention’) are also well-aware of its existence. Similarly, the right to be forgotten is no uncommon phenomenon to the Member States of the European Union. The Court of Justice of the European Union (ECJ) created this right in EU law in its ground-breaking Google Spain SL and Google Inc judgment in 2014. The right to be forgotten lacked a legal basis until it was codified in Article 17 of the General Data Protection Regulation 2018 (GDPR), which replaced the Data Protection Directive and illustrated the EU’s recognition of this right’s pivotal role in the effective application of data protection principles.
Nevertheless, the right to be forgotten is far from fully crystallised. On 22 June 2021, the ECtHR handed down the Hurbain v. Belgium ruling, shedding further light on the scope of this right in the online sphere, and more importantly revealing which factors should be examined when balancing the right to freedom of expression of the publisher and the public under Article 10 against the right to privacy of the individual under Article 8. In this case, the Court strove to achieve a fairer balance between these two fundamental rights, which is demonstrated by its return to its formerly established case law.
The applicant, the editor-in-chief at the Belgian newspaper Le Soir, had been ordered by national courts to anonymise the name of the driver responsible for a fatal accident in 1994 in an article included in the newspaper’s digital archives on the basis of the right to be forgotten. He argued that this was a violation of the publisher’s right to freedom of expression under Article 10. The publication mentioned the full name of the driver (G.) and was available online without any payment. G. requested the removal, or at the very least, the anonymisation of the piece. He argued that he is a physician and that his (prospective) patients could easily retrieve the contested article by a simple entry on a search engine. The newspaper denied G.’s request and he eventually brought the case to the Belgian courts, who granted his request to anonymise his full name in the disputed publication. The national courts held that the inclusion of the – originally written – piece in the digital archives was a new disclosure of G.’s judicial past, which violated his right to be forgotten. The Belgian courts balanced G.’s right to be forgotten and the applicant’s right to freedom of expression in accordance with the criteria set out in the case law of the ECtHR. They found that the anonymisation of G. in the article would be the most effective and proportionate measure, as the online article was of no value in terms of newsworthiness and G. was not a public figure. Further, the article could inflict harm upon G.’s reputation, since it created a ‘virtual criminal record’ while G. had already served his time in prison and been rehabilitated into society. Thus, the national courts ordered that G.’s full name be replaced with the letter ‘X’.
The question before the Court was whether the order to anonymise the publication in the digital archives constituted a violation of the publisher’s right to freedom of expression under Article 10 ECHR. The ECtHR commenced its analysis by recalling the six criteria to be considered when conducting a balancing exercise between the right to freedom of expression and the right to privacy as established in Axel Springer v. Germany. The first aspect is the article’s contribution to a debate of public interest. The second factor assesses whether the person concerned is well-known and the article’s purpose. The third element encompasses the behaviour of the individual relying on the right to be forgotten towards the media. The fourth aspect is the method by which the information was obtained and its veracity. The fifth factor considers the content, form and impact of the publication. The sixth and last element examines the gravity of the measure imposed on the publisher.
Concerning the article’s contribution to a debate of public interest, the Court found that the inclusion of a piece in the digital archives has a different impact on a debate of public interest than its initial publication. In this case, the fatal accident occurred twenty years prior to G.’s request, which meant that G.’s name, who is not a public figure, did not contribute to a debate of public interest. As regards the second aspect, while the ECtHR acknowledged that the right to privacy does not provide a remedy for damages to the individual’s reputation – caused by their own behaviour – this does not exclude individuals convicted of a crime from relying on the right to be forgotten. The Court held that a publication in the online archives should not become a ‘virtual criminal record’, in particular in this case where G. has paid his debt to society and has been reintegrated. Further, G. was not a public figure, rather he was an unknown person at the time of his request for anonymisation. Additionally, with the exception of the article at hand, the facts for which G. was convicted did not enjoy any media coverage. Thirdly, the Court held that G. did not seek the spotlight during the publication of the piece in 1994 and its inclusion in the digital archives in 2008. Concerning the method by which the information was obtained and its veracity, the ECtHR argued that the facts as stipulated in the publication were not disputed. With regard to the fifth factor, the content, form and impact of the publication, the Court held that the article discussed road accidents that had occurred in 1994, one of which was caused by G. The Court found that as pieces in the digital archives are more likely to undermine the right to privacy in particular, another regime than that applicable to traditional print media may be justified. Additionally, internet users retrieving the article discussing the fatal accident caused by G. were most likely actively seeking this information. To this end, the ECtHR acknowledged that the contested article was easily retrievable by entering G.’s name full name in a search engine or on the website of Le Soir. Lastly and sixthly, the Court stressed that national courts should consider the effect of the imposed measure on the right to freedom of expression. In the case at hand the ECtHR noted that the anonymisation of the piece in the digital archives would not interfere with the integrity of the physical copy of the publication which would not need to be adapted. Further, internet users could still request access to the full disputed publication – without anonymisation.
In conclusion, the Court confirmed that, by ordering the anonymisation of the contested article, the Belgian courts performed the balancing exercise in accordance with the criteria set out in the well-established case law of the ECtHR. Put differently, the scales were tipped in favour of the right to be forgotten and, consequently, there was no violation of the right to freedom of expression under Article 10 ECHR. However, the Court stressed that this judgment should not be regarded as an obligation on the media to check their digital archives in a systematic and permanent manner and to balance the right to be forgotten against the right to freedom of expression. The media are only required to do so when faced with an explicit request from an individual relying on this right.
Prior to this ruling, the right to be forgotten had already been given a prominent place in Convention 108+ and in various rulings handed down by the ECtHR. The subject of Hurbain is the perpetual balancing of the two ever-clashing human rights of the right to freedom of expression under Article 10 ECHR and the right to privacy of Article 8 ECHR. This ruling shows which elements are to be scrutinised in the balancing exercise in the online realm.
The Court has already addressed the right to be forgotten in an online context. In the 2018 case of M.L. and W.W. v. Germany, the weekly magazine, Der Spiegel, included five articles discussing in great detail the private life of the two applicants, who were both convicted of the murder of a famous German actor, in its digital archives. Further, the pieces were accompanied by three photographs depicting both M.L and W.W. In this case, the ECtHR addressed whether the national court’s decision not to oblige Der Spiegel to adhere to the applicant’s request for the anonymisation of these five publications resulted in a violation of their right to be forgotten. The Court considered four aspects of its Axel Springer v. Germany ruling to weigh the right to freedom of expression against the right to privacy: (1) the article’s contribution to a debate of public interest, (2) how well-known the person concerned and the subject of the piece- are, (3) the prior conduct of the person relying on the right to be forgotten towards the media, and (4) the content, form and consequences of the publication. As the article published in Der Spiegel also included photographs, the ECtHR additionally examined a fifth element, namely the circumstances in which the photos were taken. Concisely, the Court held that the German courts correctly performed the required balancing exercise. In other words, the ECtHR did not find a violation of Article 10 and the right to freedom of expression of the publisher and of the public prevailed over the individual’s right to privacy. Interestingly, in M.L. and W.W. the Court did not consider the final two aspects of Axel Springer: (1) the method in which the article’s information was collected and the veracity of the facts, and (2) the seriousness of the measure imposed on the publisher.
However, in Hurbain, the ECtHR once again requires national courts to scrutinise all six Axel Springer factors, marking its return to its previously established case law. Requiring the examination of all these factors illustrates the Court’s search to establish a balancing exercise that also fully appreciates the publisher’s interests. In Hurbain, the ECtHR did not find any reason to doubt the veracity of the facts of the article and accepted that the facts in the article were obtained in line with journalistic ethics and standards. Further, the initial publication of the article was not disputed. The Court also held that no less intrusive measure than the ordered anonymisation was imaginable for the right to freedom of expression. Additionally, they emphasised the effects of the online realm. Firstly, in the online setting certain elements, as established in Axel Springer, may be allocated a different weight when balancing the two fundamental rights. Secondly, while digital archives play a pivotal role in preserving and accessing news since they are widely available to the public and are normally accessible free of charge, they may have a more detrimental impact on the individual’s right to privacy – which may be exacerbated by search engines – compared to traditional print media. As a result, the ECtHR unequivocally confirmed that the balancing exercise may lead to a different outcome contingent on the online (digital archives) or offline (physical copy of a publication) environment in which the case is set.
Turning to the legal order of the European Union, in its renowned Google Spain ruling, the ECJ for the very first time confirmed that the right to privacy under Article 7 of the EU Charter of Fundamental Rights (EU Charter) and the right to data protection of Article 8 EU Charter include the right to be forgotten for data subjects. This new tool entails that – if so requested by the data subject – personal data should be removed from results of internet inquiries on search engines. The ECJ also elaborated on the balancing exercise to be performed between the right to be forgotten, on the one hand, and the right to freedom of expression, on the other hand. The former right of the data subject will as a rule prevail over the latter right of the search engine operator and the public. In other words, the weighing of these rights will generally speaking be in favour of the data subject, whose rights will outweigh the economic interests of the search engine operator and the general interest of the public to retrieve information on the data subject. Nevertheless, the ECJ left an opening to tip the scales to the other direction if the data subject is a public figure, in which case the general public’s interest of having access to the information on the data subject may offset the individual’s right to be forgotten. Regardless of the ECJ’s resolute attitude towards the right to be forgotten of the data subject, the legislator of the European Union has restricted the ECJ’s seemingly unconditional application in favour of data subjects by explicitly stating in Article 17(3)(a) GDPR that the data subject’s request to exercise their right to be forgotten may be denied if the right to freedom of expression so requires. As a result, it remains to be seen whether the right to be forgotten under the legal order of the European Union is as rigid as Google Spain may suggest.
Compared to Hurbain, the ECJ seems to take an unequivocal stance on the right to be forgotten, since the Court in this case did not dare to also hold that the individual’s right to the forgotten – generally – prevails over the right to freedom of expression of the publisher and the public. Put differently, in an online setting the ECtHR still demands national courts to weigh the two fundamental rights against each other by examining the six criteria in its Hurbain case. Nevertheless, this may be the result of the different actors at play, namely a publisher of a newspaper in the Hurbain ruling and a search engine operator in Google Spain. This interpretation would be consistent with both the ECtHR and the ECJ accepting that different obligations may rest upon publishers, whose core activity of publishing articles falls within the heart of the scope of the right to freedom of expression, and search engines operators, whose main activity is not publishing articles but rather facilitating the retrieval of information about the individual searched.
The concept of the right to be forgotten is nothing new under the ECHR – indeed, the Court has long acknowledged this right in both the offline and online realm – and provides individuals with a keen-edged sword to protect their personal data. In Hurbain, the ECtHR attempted to develop a fairer balancing exercise by reverting back to its Axel Springer judgment, which embodies the publisher’s interests and thus the right to freedom of expression. Indeed, the Court requires a true balancing exercise, whereas the ECJ already performed this test and outlined the outcome, which may nonetheless be the result of the different actors at play. Notably, Article 17(3)(a) GDPR may bring change to the unrestricted use of the right to be forgotten of the ECJ. Unfortunately, there seems to be no clear-cut answer to the question towards which fundamental right the scales are tilted in the European legal realm. Since the case has been referred to the Grand Chamber, it is now up to it to yet again weigh the right to privacy and the right to freedom of expression in the balance.