Lievens, Eva

Ghent University Academic Bibliography

IRIS 2016-7/7BE-Belgium:Court of Cassation extends the right to be forgotten to online newspaperarchivesOn 29 April 2016, the Court of Cassation rejected the appeal against a judgment of the Court of Appeal of Liège (25September 2014) which found that a doctor could request the anonymisation of an article in the online archive of anewspaper. The article concerned a fatal car accident which the doctor had caused 20 years ago while inebriated(for a Dutch case on online news archives, see IRIS 2015-6/27).The Court of Cassation confirmed the reasoning that the “digital” right to be forgotten (le droit à l’oubli numérique)is an intrinsic component of the right to privacy. In its assessment of the legality criterion of Article 10, paragraph2 of the European Convention on Human Rights (ECHR), it finds that the interference with freedom of expression,that the right to be forgotten may justify, is based not on doctrine and jurisprudence, but on Article 8 of theECHR, Article 17 of the International Covenant on Civil and Political Rights (ICCPR) and Article 22 of the BelgianConstitution. The reference by the Court of Appeal to the Google Spain judgment of the Court of Justice of theEuropean Union (C-131/12) (see IRIS 2014-6/3) supports the scope that it bestows on this right to be forgotten.Furthermore, according to the Court of Cassation, although Article 10 ECHR and Article 19 ICCPR ensure that thewritten press may put digital archives online and guarantees that the public may access these archives, theserights are not absolute. In certain circumstances, within the strict limits of these articles, these rights shouldyield to other equally respectable rights. The right to respect for private life contains the “droit à l’oubli” orright to be forgotten, allowing a person who has been found guilty of a crime or an offence to oppose in certaincircumstances that his judicial past is recalled to the public on the occasion of a new divulging of facts, and mayjustify an interference with the right to freedom of expression. The digital archiving of an old press article that,at the moment when the facts occurred, legally rendered an account of the past that is now covered by the rightto be forgotten, can be the subject of such interference. This may consist of altering the archived text in order toprevent or redress a violation of the right to be forgotten.The Court of Cassation considered that the Court of Appeal judgment was right in stating that the online archivingof the article in question constituted a new divulging of the judicial past of the defendant, which may breachhis right to be forgotten. By putting the article online, the applicant has enabled the article to be “prominentlyavailable” through the search engine of its website, which can be consulted for free. Moreover, this availability isenhanced considerably by search engines such as Google.In addition, it was confirmed that the defendant fulfils the conditions to benefit from the right to be forgotten.Maintaining the non-anonymised article online, many years after the incident about which the article was written,the Court agrees, may cause the defendant harm disproportionate to the advantages gained from the strict respectof the applicant newspaper’s freedom of expression. The Court found that the conditions of Article 10 paragraph2 ECHR, with respect to legality, legitimacy and proportionality, are fulfilled. Hence, the Court of Appeal judgmentlegally justified its conclusion that, by refusing to anonymise the article in question, the applicant has made amistake. The order to replace the first and last name of the defendant with an “X” in the version of the article onthe website, and to pay him EUR 1 as moral damage, is thus confirmed.Interestingly, the Court of Cassation emphasised that the Court of Appeal does not base the digital right to beforgotten on the European Parliament and Council Directive 95/46/EC of 24 October 1995 on the protection ofindividuals with regard to the processing of personal data and on the free movement of such data. Nor, it stated,was it based on the Belgian Act of 8 December 1992 on the protection of privacy in relation to the processing ofpersonal data.• Cour de cassation, C.15.0052.F, 29 avril 2016 (Court of Cassation, C.15.0052.F, 29 April 2016)http://merlin.obs.coe.int/redirect.php?id=18047FREva LievensGhent UniversityIRIS 1The objective of IRIS is to publish information on legal and law-related policy developments that are relevant to theEuropean audiovisual sector. Despite our efforts to ensure the accuracy of the content, the ultimate responsibilityfor the truthfulness of the facts on which we report is with the authors of the articles. Any opinions expressedin the articles are personal and should in no way be interpreted as representing the views of any organisationsrepresented in its editorial board.© European Audiovisual Observatory, Strasbourg (France)IRIS 2

Court of Cassation extends the right to be forgotten to online newspaper archives

https://biblio.ugent.be/publication/8028663/file/8028669

Court of Cassation extends the right to be forgotten to online newspaper archives

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