Privacy, Data Protection and Retention
Google Spain SL v. Agencia Española de Protección de Datos
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The Belgian Court of Cassation ruled that the right to respect for private life included the “right to be forgotten”, and it upheld an obligation on a newspaper to anonymize the name of a person in the digital version of an article from 1994. The case concerned a doctor who had been convicted for his involvement in a fatal car accident in 1994. Around the time of the accident, an article was published about him in the newspaper Le Soir. In 2008, the newspaper created a public online archive of all of its articles since 1989. This made it possible for anyone to find the 1994 article by searching the doctor’s full name on Google or the website of Le Soir. The Belgian Court of Cassation upheld lower instance decisions that ruled that anonymization of the digital version of the article struck a fair balance between the right to freedom of expression and the right to respect for private life. The Court of Cassation reasoned that the archiving of the article amounted to a new publication of the story, which could cause disproportionate harm to the doctor’s reputation.
O.G., a medical doctor, was involved in a serious accident in 1994 that led to the death of two persons. He was subsequently convicted of drunk driving, and was later deemed “rehabilitated” by a court decision dated November 24, 2006.
Le Soir, a Belgian newspaper, published an article about the incident in 1994. This article included the full name of O.G.. In June 2008, the newspaper created a public online archive of all of its articles since 1989. As a result, searches of O.G.’s name either on Le Soir’s website or on Google produced the 1994 article in search results.
In 2010, O.G. requested that the Editor in Chief of Le Soir, Patrick H. (P.H.), remove or anonymize the article. The newspaper refused, and O.G. sought a judicial order to anonymize the article on the grounds that information in it harmed his privacy.
In 2013, a first instance court granted O.G.’s request and ordered Le Soir to replace his name with the letter “X” in the story. In 2014, the Court of Appeal from Liège upheld the lower instance ruling. It reiterated a need for balance between the right to freedom of expression and the right to privacy, and held that:
P.H., on behalf of Le Soir, appealed to the Belgian Court of Cassation (the highest and final court of appeal in Belgium). Le Soir argued that the case against it should not have been held admissible, and that its right to maintain news archives outweighed any right to respect for private life engaged in this case.
The Court of Cassation (Court) upheld the lower instance decisions. The Court first considered two procedural objections put forward by the newspaper. Firstly, the Court rejected the argument that the case should have been sent to the public prosecutor because it was a “press offence” (under Article 764 of the Judicial Code). The Court reasoned that the current proceedings were not concerning a “press offence” because they did not relate to the content of the article (i.e. there was never any allegation that the article contained illegal content). Secondly, the Court rejected the argument that P.H. was not the proper party to proceedings. P.H. was relying on the “cascade of liability” principle to justify this argument, which states that when the author of a publication is known and resides in Belgium, neither the publisher, nor the printer, nor the distributor can be prosecuted (Article 25 of the Belgian Constitution). The Court found that the current proceedings related to the maintenance of an online article, which was an editorial decision, and so the editor could be held responsible.
With regard to the merits of the case, the Court declared that the “right to be forgotten” was an integral part of the right to respect for private life enshrined in Article 8 of the European Convention of Human Rights, Article 22 of the Belgian Constitution, and Article 17 of the International Covenant for Civil and Political Rights. In doing so, the Court rejected P.H.’s argument that the interference with the newspaper’s (and the public’s) right to freedom of expression was not “prescribed by law” in accordance with Article 10(2) of the European Convention of Human Rights.
The Court recognized that Article 10 of the European Convention of Human Rights gave the press the right to archive articles online, and the public the right to access them. However, the Court also found that this right was not absolute and had to yield to other rights in certain circumstances. In this regard, the Court proceeded to explain that the “right to be forgotten” could amount to a legitimate restriction on the right to freedom of expression when applied to the digital archiving of older articles. Referring to Google Spain, the Court recalled that the right to “digital oblivion” could be applied in the context of digital re-disclosure. The Court also noted that the “right to be forgotten” allowed a person who had been convicted of a crime to oppose, in certain circumstances, the re-disclosure of his criminal past to the public. The Court then went on to explain that the digital archiving of an article that was originally lawfully published was not exempt from this application of the “right to be forgotten”. The Court held that, in such cases, an interference with the right to freedom of expression could be justified and the interference could include the alteration of an archived text.
The Court concluded that, in this case, the archiving of the relevant article constituted a new disclosure of O.G.’s criminal past. In this context, the Court noted that the digital archiving of the article made it possible for the public to easily find the article through a search engine, which they could not do before. It reasoned that the harmful indexation on search engines was possible only because the article did not anonymize O.G.’s name. Consequently, he was entitled to request from the publisher that it anonymize the reference to him in the relevant article. Furthermore, keeping the article about O.G. online created a virtual criminal record that gravely and indefinitely damaged his reputation and this outweighed the right to freedom of expression in maintaining the article in its original form.
The Court concluded that by refusing to anonymize the article, the newspaper was at fault. The lower courts’ decision were, therefore, upheld.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision has a mixed outcome for freedom of expression. On the one hand, the Belgian Court of Cassation (Court) recognized that the online archiving of older articles was protected as an aspect of the right to freedom of expression. On the other hand, the Court required that a newspaper anonymize the name of an individual in a story that had been legally printed almost twenty years before. This could have a detrimental impact on newspapers’ ability to keep digital records of their articles. It could also have a chilling effect on the reporting of current affairs, as newspapers may choose to anonymize information when it is initially published to prevent potential lawsuits in the future. Nonetheless, the Court reached a decision on the “right to be forgotten” that did not result in the de-indexing of an entire news story (making it more difficult for users to find it). Instead, a less drastic measure (i.e. anonymization) was imposed by the Court. Therefore, this decision could be viewed as a less disproportionate restriction on the right to freedom of expression when compared to other “right to be forgotten” cases.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The decisions of the Court of Cassation are not binding on lower courts , but still offer persuasive authority.
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