In the Strasbourg Club: The Right to be Forgotten v the Right to Remember. A Conversation on Hurbain v Belgium

by Eva Brems

Strasbourg Observers is proud to present a new series of columns to its blog: ‘In the Strasbourg Club’! In these posts, professor Eva Brems, one of our editors-in-chief, presents an accessible, dialogue-style discussion of a recent case. The columns will be based on/inspired by real-life discussions in the bi-weekly ‘Strasbourg Club’, a reading group based at the Ghent University Human Rights Centre in which researchers discuss recent case-law of the European Court of Human Rights. We think that this low-threshold format can be enjoyable for ECHR experts as well as novices, to get a feeling of just how much material for consideration and discussion a case can raise.

It is the official first day of autumn, hence the rainy weather in Ghent is appropriate. Still, the atmosphere is warm at the first Strasbourg Club gathering after the summer break. Chloe (on the screen) and Leonore (in the room) lead the meeting, as they have selected the cases for discussion and prepared the summaries.

‘Let’s kick off with our main course for today: Hurbain v Belgium’, Leonore says. This is a Grand Chamber judgment that confirms the Chamber judgment’s finding of no violation of Article 10 ECHR. The case is brought by the publisher of Le Soir newspaper, who was ordered to anonymize the electronic version of a 1994 article in its archives, as a result of a court procedure brought by a doctor who was named in the article as the perpetrator of a lethal car accident. He has long served his sentence for this and does not want this article to keep popping up whenever people search for his name. He is claiming a ‘right to be forgotten’, and actually, I tend to follow him and agree with the outcome.’

‘Can we see a show of hands’, I interrupt, ‘who agrees with the outcome of this case?’.

It seems that most of us do. ‘In a way, this is funny, because the Human Rights Centre participated in a third-party intervention supporting the other side.’ We laugh, because it is indeed funny. At the same time, we agree that this is a conflicting rights case, in which both sides have arguable claims, and that it would be a strange Human Rights Centre that required its members to follow a single line on such matters. Too bad that the colleagues who were involved in this submission are not among us today though!

Our new member, Olivier, picks up the thread of the conversation. He shows how well he prepared for his first Strasbourg Club meeting, by situating the case in the Post-Brighton subsidiarity era: ‘I regret the procedural turn of the Court’s reasoning. Ultimately the European Court finds that the Belgian courts have carefully balanced the rights at stake. It proposes a neat checklist of criteria that are supposed to guide the balancing of freedom of expression and privacy. This is not the usual checklist, but an adapted one specifically for cases involving archives. I grant that this is really useful for national courts.

 I nod, because I generally like the way these checklists give a degree of substance to procedural review. ‘But,’ Olivier goes on, ‘but at the same time, this approach limits the possibility for the Court to fully assess the validity of the applicants’ arguments about the burdens for the press that result from an obligation to anonymize archival material whenever people have good cause to ask for it.’

‘I kind of agree’, Leonore jumps in, ‘that the viewpoint of the press deserved more attention in the judgment. Take, for example, the argument that the existence of the unaltered paper version of the newspaper mitigates the impact of the anonymization of the electronic version. That is correct in the case at hand, but in a broader view, it seems a moot argument, as the paper press may be more or less disappearing. Also, alternative measures could have been discussed more, especially Google delisting. If the Court had looked more critically at the reasoning of the Belgian courts, it could have considered whether delisting was a ‘less restrictive alternative’ that ought to have been preferred over anonymization.’

That has me mounting one of my hobby horses: ‘The thing is that ‘less restrictive means’ reasoning is synonymous with a narrow margin of appreciation for state authorities. And I have always defended a wide margin in conflicting rights cases, which is why I don’t follow your reasoning on delisting’.

Let’s talk a bit more about these conflicting rights’, Irene proposes. ‘Against the right to be forgotten, the dissenters put forward the right to remember, which would require the integrity of media archives. I had not heard of such a right before, I must admit. Had you?’

It seems none of us has.

‘Aha, they totally made this up then. Cheers to them! I think it works in a way, as a summary of what is at stake with the integrity of the archive. And as a catchy phrase to match another catchy phrase. But at the same time: in Hurbain, we are talking only about the name of the driver of a car accident that happened a very long time ago.’  

‘That is so true’, Tom adds, ‘the dissenters talk about the “alteration of facts”, but that seems a bit over the top when the case is only about deleting the name of a person who is not a public figure’. Sophie shakes her head: ’Yet this is a Grand Chamber case, so maybe it should not only be about the name of this doctor. Is that not precisely the mindset of the dissenters? It seems to me that the majority has solved the conflict of rights in the Hurbain case, whereas the minority wanted to solve the issue of interference with media archives as such; their disagreement may not be so much about this case, about the potential broader implications of the judgment that puts the “right to be forgotten” above the “right to remember”’.

‘Talking about catchy phrases’, Chloe interrupts, ‘what really worked for me is the image of the searchable electronic archive as a “virtual criminal record”, that effectively undermines the rehabilitation of a driver who has served his sentence.’

This is received by a lot of nodding.

‘That is such a good image of the harm the doctor suffered’, Tom adds. ‘I thought the dissenters were unduly minimizing the harm he suffered, when they said he had not provided evidence for it and that the Belgian courts had not demonstrated that the article harmed his reputation.’ 

‘I was thinking the same thing’, Ellen says, ‘I Google my doctor every time I need to make an appointment; is it not self-evident that it is harmful for his reputation if such an article shows up in the search?’.

‘At the same time, while they require evidence of the harm to the doctor, the dissenters do not consider it necessary to demonstrate the harm to the publisher’, I comment, and showing my iPad, I continue ‘I drew a big question mark beside paragraph 5 of the dissent, where it says “I believe” that the media would self-censor if they felt the threat of being compelled to anonymize articles afterwards. I know the chilling effect argument is a standard one in press freedom cases, but as a matter of fact, it is a claim that can be – but has not been –  empirically verified, and in this new context it is applied openly as a point of belief, not a point of fact. And frankly, “belief” arguments give me the chills.’

Murmuring in disagreement, Olivier interrupts: ‘You all seem to be in line with Judge Krenc who says in his separate opinion that more harm has been done to the doctor than to Le Soir. But I am not comfortable with this balancing of harm. I must confess that I was attracted by the anti-balancing stance of the dissenters. It resonated with my recent reading of Letsas….’  Enthusiastically I jump in: ‘So you prefer the bathroom scale over the scales of Themis, Olivier? Have you considered…’

‘Hey guys!’ On the screen, Chloe raises her voice, ‘I don’t want to be a spoilsport, but can I point out that we have now spent 45 minutes discussing this case, and we have four others to discuss today… I am really looking forward to our discussion on the French donor child case and of course the Semenya case!

‘You are right Chloe’, I say, ‘Let’s move on.’ Before digging into Camara v Belgium, I send a ‘note to self’ e-mail: a reminder to schedule Hurbain v Belgium for a class discussion in my ECHR course next semester. There is so much more to say on this case!