THIRD SECTION
CASE OF HURBAIN v. BELGIUM
(Application no. 57292/16)
 
 
JUDGMENT
 
Art 10 • Freedom of expression • Newspaper publisher ordered to anonymise the online archive of an article printed twenty years earlier, to protect the right to be forgotten of a person who had caused a fatal accident • Balancing of the interests at stake in conformity with the Court’s case-law • Identity of private person who was not known to the public did not enhance the public interest of the impugned article, which, by being kept online, was liable to create a “virtual criminal record” • Damage caused to the individual named in view, among other factors, of the length of time since publication of the original article • Integrity of original version of the archived article preserved • Relevant and sufficient reasons • Proportionate measure • Obligation for media to check their archives and weigh up the rights at stake only in the event of an express request to that effect
 
STRASBOURG
22 June 2021
 
THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 04/07/2023
 
This judgment may be subject to editorial revision. In the case of Hurbain v. Belgium,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Georgios A. Serghides, President,
 Paul Lemmens,
 Georges Ravarani,
 María Elósegui,
 Darian Pavli,
 Anja Seibert-Fohr,
 Peeter Roosma, judges,
and Milan Blaško, Section Registrar,
Having regard to:
the application (no. 57292/16) against the Kingdom of Belgium lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Belgian national, Mr Patrick Hurbain (“the applicant”), on 26 September 2016;
the decision to give notice to the Belgian Government (“the Government”) of the application;
the parties’ observations;
the comments submitted by G., who was granted leave to intervene as a third party by the President of the Section;
Having deliberated in private on 23 March and 18 May 2021,
Delivers the following judgment, which was adopted on the last‑mentioned date:
INTRODUCTION
1. The application concerns a civil judgment against the applicant, the publisher of the Belgian daily newspaper Le Soir, ordering him to anonymise, on the basis of the right to be forgotten, the electronic archived version of an article which mentioned the full name of G., the driver responsible for a fatal road accident in 1994. The applicant relies on Article 10 of the Convention. THE FACTS
2. The applicant was born in 1959 and lives in Genappe. He was represented by Mr A. Berenboom, lawyer. 3. The Belgian Government (“the Government”) were represented by their Agent, Ms I. Niedlispacher, of the Federal Justice Department. BACKGROUND TO THE CASE
4. The applicant is the publisher of the newspaper Le Soir, one of Belgium’s leading French-language newspapers. 5. In a 1994 print edition of the newspaper an article reported, among other items, on a car accident caused by G. that had led to the death of two people and injured three others. The article mentioned G.’s full name. G. was convicted in connection with the incident in 2000. He served his sentence and was formally rehabilitated in 2006. 6. Since 13 June 2008 the newspaper’s website has provided an electronic version of its archives dating back to 1989, including the above‑mentioned article. When the archives were published online, and throughout the proceedings before the domestic courts, the articles were freely accessible on the website. 7. On 15 June, 7 July and 19 August 2010, G. wrote to the legal department of the public limited company Rossel et Compagnie, which owned Le Soir, requesting that the article be removed from the newspaper’s electronic archives or at least rendered anonymous. In support of his request G. referred to the fact that he was a doctor and that the article appeared on the list of search results when his name was typed into several search engines. 8. On 24 January 2011 the legal department of Rossel et Compagnie refused to remove the impugned article from the archives, but stated that it had given notice to the administrator of the search engine Google to delist the article. A reminder was sent to the administrator of Google on 23 February 2011. Before the domestic courts, the applicant stated that these steps had produced no response. The Court has not been informed of any subsequent follow-up action. 9. On 30 March 2012 G. brought the case before the Council for Journalistic Ethics (Conseil de déontologie journalistique – “the CDJ”), the self-regulatory body of the French and German-speaking media in Belgium. 10. On 18 April 2012 the CDJ declared the request inadmissible on the grounds that the dispute did not concern a matter of journalistic ethics. It pointed to the solutions that had been adopted by Belgian newspaper publishers with regard to electronic press archives, namely the right to rectification (in cases where the information was inaccurate) and the right of electronic communication (in cases where the information was incomplete). DOMESTIC COURT PROCEEDINGS
11. In a summons served on 24 May 2012 G. instituted proceedings against the applicant in the Neufchâteau Court of First Instance, seeking to have the online press archive in question anonymised on the basis of Article 1382 of the Civil Code. In the alternative, should the applicant actually provide irrefutable technical evidence of the impossibility of making the information anonymous, G. sought an order requiring him to add a “no-index” tag to the online version of the article to prevent it from appearing on the list of results when his name was typed into the search engine of the newspaper’s website. In G.’s view, by keeping the article online without anonymising it or adding a no-index tag, despite receiving a reasonable and substantiated request to that effect, the applicant had committed a fault and had infringed G.’s right to be forgotten. 12. In a judgment of 25 January 2013 the Court of First Instance allowed most of G.’s claims. Noting that the applicant had not adduced any evidence of the impossibility of anonymising the article, the court ordered him to replace G.’s first name and surname by the letter X in the digital version of the article featured on the newspaper’s website and on any other database for which he was responsible. The applicant was ordered to pay one euro to G. in respect of non-pecuniary damage and to pay G.’s costs. The court rejected the requests for an anonymised version of the judgment to be sent to the parties and to possible third parties and for the judgment to be declared immediately enforceable. 13. In a judgment of 25 September 2014 the Liège Court of Appeal upheld the lower court’s judgment in its entirety. The Court of Appeal began by pointing out that each of the parties had fundamental rights that were not absolute and were of equal ranking. 14. As to the criterion of lawfulness required in order to derogate from the principle of freedom of expression, the Court of Appeal noted that the right to be forgotten was considered an integral part of the right to respect for private life as enshrined in Article 8 of the Convention, Article 17 of the International Covenant on Civil and Political Rights and Article 22 of the Constitution. That was sufficient to satisfy the lawfulness test in order to derogate from the principle of freedom of expression. The Court dismissed the applicant’s argument that Article 1382 of the Civil Code did not provide a clear and foreseeable legal basis. The provision in question constituted the ordinary rules on liability and was applicable to news organisations, which could not be unaware that they might be held liable if the exercise of press freedom caused damage resulting from an infringement of the rights of others. As the Court of First Instance had observed, Articles 1382 et seq. of the Civil Code, as interpreted by the Belgian legal literature and case-law, constituted legislation that was sufficiently accessible, clear, precise and foreseeable for the purposes of Article 10 § 2 of the Convention. 15. The Court of Appeal added that, alongside the traditional aspect of the right to be forgotten linked to the fresh disclosure by the press of a person’s previous convictions, there existed a second aspect linked to the erasure of the digital data, and in particular the data available on the Internet. The dispute, which concerned the digitisation of journalistic archives, related to the latter aspect, namely the right to be forgotten online. What was sought, therefore, was the removal of information available on the Internet. This right to be forgotten online had recently been established by the Court of Justice of the European Union (“the CJEU”) in its judgment in Google Spain and Google (C-131/12, 13 May 2014; see paragraphs 41‑45 below). The CJEU had held that the requirement regarding fresh disclosure of the information could be inferred from the effect of the search tool, which gave prominence to information that would not otherwise be visible online. It was true that the CJEU judgment concerned a dispute between a private individual and the operator of a search engine. Nevertheless, the principles established by that judgment could be transposed to the case at hand in so far as the publisher had also enabled the article in question to be given prominence via the search engine of the newspaper’s website, which was accessible free of charge. The effect had also been multiplied significantly by the development of the operating software used by Google-type search engines. The indexing of the article on search engines was only possible because it was present in the database of Le Soir in non-anonymised form and without any no-index tag. 16. The right to be forgotten online was not unlimited and had to be regulated in so far as it was liable to come into conflict with the freedom of expression of the press. In order to assess whether a balance had been struck between the fundamental rights enshrined, inter alia, in Articles 8 and 10 of the Convention, it was necessary to have regard to the criteria defined in the Court’s case-law (Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, ECHR 2012) and the case-law of the CJEU (Google Spain and Google, cited above). Thus, in order for a right to be forgotten to be recognised, the facts had to have been disclosed lawfully in the first place and had to be of a judicial nature; there could be no current interest in their disclosure; the facts could not be of historical interest; a certain time had to have elapsed between the two disclosures; and the person concerned could not be a public figure, had to have an interest in being reintegrated into society, and had to have discharged his or her debt. The Court of Appeal’s task in the case before it was to ascertain whether, in the light of these criteria, the restriction on press freedom stemming from G.’s request pursued a legitimate aim and satisfied the proportionality test, in conformity with Article 10 § 2 of the Convention. 17. In the instant case the Court of Appeal found that it was not disputed that the original disclosure of the information in question had been lawful and that the facts reported on had been of a judicial nature. The fresh disclosure of the facts had no value in terms of newsworthiness. G. did not hold any public office: the mere fact that he was a doctor in no way justified his continued identification in the online article some twenty years after the events. The court considered this to be illegitimate and disproportionate, since it did not add anything to the value of the article and was liable to cause indefinite and serious harm to G.’s reputation by giving him a “virtual criminal record”, despite the fact that he had not only served his sentence after a final conviction for the offence but had also been rehabilitated. Twenty years after the events, the identity of a person who was not a public figure did not enhance the public interest of the article, which merely contributed at a statistical level to a public debate on road safety. 18. In the Court of Appeal’s view, removing G.’s first name and surname did not render the information devoid of interest since it would have no impact on the actual substance of the information conveyed, which concerned a tragic road traffic accident caused in particular by the harmful effects of alcohol. The applicant’s arguments concerning the duty of remembrance and the need to preserve a full and faithful record in the archives were irrelevant. G. had not requested that the impugned article be removed from the archives, but simply that the electronic version be rendered anonymous; the paper archives remained intact and the applicant was still able to ensure the integrity of the original digital version. 19. The events reported on in the article were clearly not of historical significance, as the article related to a banal – albeit tragic – news story which was not alleged, still less demonstrated, to have been a source of particular public concern. 20. Lastly, a significant length of time (sixteen years) had elapsed between the initial publication of the article and the first request for anonymisation; some twenty years had passed by the time of delivery of the judgment. 21. It followed from all these considerations that G. satisfied the criteria for claiming a right to be forgotten, and that keeping the article in question online without rendering it anonymous was liable to cause him disproportionate harm when weighed against the benefits of strict observance of the applicant’s right to freedom of expression. The criteria of lawfulness, legitimacy and proportionality arising out of Article 10 § 2 of the Convention were satisfied in the Court of Appeal’s view. 22. The request for anonymisation had been apt to ensure a proper balance between the interests at stake. That balance would not be achieved by the establishment of a right to digital rectification or communication as proposed by the applicant. Such procedures would not be appropriate as they would allow the stigmatising effect of the serious offences committed by G., and of the sentence he had already served, to persist indefinitely and would render the rehabilitation order given in his favour meaningless. Hence, the most effective means of protecting G.’s privacy without interfering to a disproportionate extent with the applicant’s freedom of expression was to anonymise the article on the website of Le Soir by replacing G.’s first name and surname with the letter X. 23. In the Court of Appeal’s view, by refusing to accede to the request to anonymise the article, the applicant had not acted in the way that any prudent and diligent publisher would act in the same circumstances. That refusal constituted a fault. A simple search using G.’s first name and surname in the search engine on Le Soir’s website or on Google immediately brought up the article. That was undoubtedly a source of damage to G., at least of a non-pecuniary nature. Such a situation made knowledge of his previous conviction easily accessible to a wide audience and was thus liable to stigmatise him, seriously damage his reputation and prevent him from reintegrating into society normally. A causal link between the fault and the damage sustained had also been established. 24. Acceding to G.’s request did not confer on each and every individual a subjective right to rewrite history, nor did it make it possible to “falsify history” or impose an “excessive burden of responsibility” on the applicant. The Court of Appeal was called upon to determine a specific dispute between two parties in the context of a one-off civil action for damages based on Article 1382 of the Civil Code while seeking to ensure that a balance was struck between two fundamental rights claimed by the parties. 25. The applicant further argued before the Court of Appeal that the way in which the database of Le Soir worked meant that it was not possible to alter archived articles and thus to replace G.’s name with the letter X. The Court of Appeal noted that, in support of his claims, the applicant had submitted a report drawn up by the newspaper’s technical department. However, the court considered that the report in question, which had been prepared after the applicant had been given notice to appear, by technicians who were in a relationship of dependency with the applicant, did not provide any guarantees of impartiality and had no probative value. Moreover, the report did not state that it was actually impossible to implement the measure requested, but simply referred to the risks and costs. The only reference to impossibility concerned the “physical impossibility of withdrawing the newspapers that [had] been sold, the collections that [had] been distributed, and the numerous copies of the content available in physical and digital format in the public domain”, something that had not been requested. 26. The applicant appealed on points of law. In one of his grounds of appeal he alleged a violation of Article 10 of the Convention. In particular, he argued in the first limb of the ground of appeal that the fault he had allegedly committed consisted in disregarding a subjective right, namely the right to be forgotten, although that right was not enshrined either in clear, precise and accessible domestic legislation or in a higher-ranking international rule, but was derived solely from the legal literature and case-law. Hence, in the applicant’s view, the Court of Appeal judgment had breached the requirement that the interference be lawful. In the second limb of the ground of appeal the applicant contended that the order for him to alter in the online archives the content of an article that had been published in the past and was available in the paper archives amounted to unjustified interference with his freedom of expression, in breach of Article 10 of the Convention. 27. In a judgment of 29 April 2016 the Court of Cassation dismissed the appeal on points of law. It found that the first limb of the ground of appeal, arguing that the Court of Appeal had based the right to be forgotten online on the legal literature and case-law, failed on factual grounds. The Court of Cassation held as follows:
“... It follows [from] the reasoning [of the Court of Appeal judgment], firstly, that the judgment under challenge regards the right to be forgotten online as an ‘intrinsic component of the right to respect for private life’ (and indeed states so), and views such interference with the right to freedom of expression as may be justified in order to protect that right as being based not on the legal literature and case-law – which the judgment does not recognise as having general regulatory scope – but on Article 8 of the [Convention], Article 17 of the International Covenant on Civil and Political Rights and Article 22 of the Constitution; and, secondly, that it refers to the judgment of the Court of Justice of the European Union only to lend support to its view on the scope of that right to be forgotten.”
28. As to the second limb, the Court of Cassation held that the right to respect for private life, which encompassed the right to be forgotten, might justify interference with the right to freedom of expression. The digital archiving of an old press article which, at the time it was printed, had lawfully reported on past events that were now covered by the right to be forgotten was not exempt from possible interference with the right to freedom of expression in order to protect the right to be forgotten. Such interference might consist in altering the archived text so as to prevent or make good a breach of the right to be forgotten. The Court of Appeal had ruled lawfully that the online archiving of the article in question had amounted to a fresh disclosure of G.’s previous conviction that was liable to infringe his right to be forgotten. The Court of Appeal had subsequently weighed up the rights of the parties and had provided legal justification for its ruling that the applicant, by refusing to accede to the request for the article to be anonymised, had committed a fault. It had therefore lawfully ordered him to replace G.’s first name and surname with the letter X on the website of Le Soir. Accordingly, the second limb of the ground of appeal had to be dismissed. 29. It appears that the article in question is still available on the newspaper’s website, but is accessible only to subscribers. It is accompanied by a notice referring to the relevant judicial decision. RELEVANT LEGAL FRAMEWORK AND PRACTICE
                 DOMESTIC LAW AND PRACTICEProtection of the fundamental rights at stake and the right to be forgotten

30. The Belgian Constitution guarantees freedom to manifest one’s opinions on all matters (Article 19) and freedom of the press (Article 25), as well as the right to respect for private and family life (Article 22). 31. Prior to the events giving rise to the present case, the right to be forgotten had been recognised by the lower courts as an integral part of the right to respect for private life (see, for instance, Brussels Court of Appeal (ref.), 21 December 1995, J.T., 1996, p. 47; Brussels Court of First Instance, 30 June 1997, J.T. 1997, p. 710; Namur Court of First Instance, 17 November 1997, J.T., 1998, p. 187; Namur Court of First Instance, 27 September 1999, Auteurs & Média, 2000, p. 471; and Brussels Court of First Instance, 20 September 2001, Auteurs & Média, 2002, p. 77). This right was also recognised subsequently by the Court of Cassation (Cass., 29 April 2016, C.15.0052.F, in the applicant’s case, and Cass., 8 November 2018, C.16.0457.F). Civil Code
32. Under Article 1382 of the Civil Code, “any act committed by a person that causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it”. 33. This provision may be used as the basis for civil actions for alleged abuse of press freedom (Cass., 4 December 1952, Pas. 1953, I, p. 215; see De Haes and Gijsels v. Belgium, 24 February 1997, § 26, Reports of Judgments and Decisions 1997‑I). Act of 8 December 1992 on the protection of private life with regard to the processing of personal data
34. Under section 8(1) of the Act of 8 December 1992 on the protection of private life with regard to the processing of personal data (“the Protection of Private Life Act”), which was in force at the material time, the processing of personal data concerning cases coming before the ordinary and administrative courts, suspected offences, prosecutions or convictions in connection with offences, and administrative sanctions or preventive measures, was prohibited. Nevertheless, section 3(3)(a) of the Act provided that section 8 did not apply to the processing of personal data solely for journalistic purposes where it concerned data that had been manifestly made public by the person concerned, or to data that were closely connected to the public profile of the person concerned or the public nature of the events in which he or she had been involved. 35. Under section 14 of the same Act, the president of the Court of First Instance, as the judge responsible for hearing urgent applications, had jurisdiction to examine any request to rectify, remove or prohibit the use of any personal data that were inaccurate or which, regard being had to the purpose of the processing, were incomplete or irrelevant; the recording, communication or retention of which was prohibited; the processing of which the person concerned had objected to; or which had been retained beyond the authorised period. 36. Hearing an application based on this Act, the president of the Brussels Court of First Instance refused to order the anonymisation of an article published in the online press archives of several media companies (Brussels Civ. (pres.), 9 October 2012, Auteurs & Média, 2013, p. 267). The applicant had based his action on the right to object and the right to rectification granted to the persons concerned under the Act. The president found that the online publication of journalistic archives could be said to meet the definition of processing solely for journalistic purposes, which was covered by a derogation under the Act relating in particular to the two rights in issue and which, in the president’s view, was not limited in time, as journalism was not merely a matter of “informing the public on current affairs”. Accordingly, the president refused the application. That order was upheld on appeal (Brussels, 21 March 2013, no. 2012/AR/2791, unreported). 37. The Act of 8 December 1992 was repealed by the Act of 30 July 2018 on the protection of individuals with regard to the processing of personal data. Section 24(2) exempts the processing of personal data carried out solely for journalistic purposes from the application of a number of Articles of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (see paragraph 48 below). Article 17 of the Regulation is not among the provisions concerned. Rehabilitation of convicted persons
38. Articles 621 to 634 of the Code of Criminal Procedure make provision for persons who have been convicted to apply for rehabilitation, subject to a number of conditions. Rehabilitation orders are made by the Court of Appeal. 39. The rehabilitation of a convicted person does not mean that the facts established by the courts and forming the basis for the person’s conviction are ignored as though they had never existed. The conviction still stands and the rehabilitation order does not prevent third parties – including the media – from referring to it (Cass., 23 April 1997, Pas. 1997, I, no. 199). COUNCIL OF EUROPE INSTRUMENTS
40. The relevant provisions of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, Recommendation No. R (2000) 13 of the Committee of Ministers to member states on a European policy on access to archives, Recommendation Rec (2003) 13 of the Committee of Ministers to member states on the provision of information through the media in relation to criminal proceedings, and Recommendation CM/Rec(2012)3 of the Committee of Ministers to member States on the protection of human rights with regard to search engines are set out in the judgment in M.L. and W.W. v. Germany (nos. 60798/10 and 65599/10, §§ 52-56, 28 June 2018). EUROPEAN UNION LAW
41. Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data was aimed at protecting the fundamental rights and freedoms of individuals, and in particular the right to privacy, with regard to the processing of personal data, while removing obstacles to the free movement of such data. Under Article 9 of the Directive, the member States could provide for exemptions or derogations from the provisions of a number of Chapters for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression “only if they [were] necessary to reconcile the right to privacy with the rules governing freedom of expression”. 42. In its judgment of 13 May 2014 (Case C-131/12, EU:C:2014:317; Google Spain SL and Google Inc. – hereafter “Google Spain”), the Court of Justice of the European Union (“the CJEU”) was called upon to define the extent of the rights and obligations arising out of Directive 95/46/EC with regard to Internet search engines. The case originated in a complaint lodged by a Spanish national with the Spanish Data Protection Agency against a Spanish daily newspaper and Google. The applicant had complained that, when an Internet user entered his name in Google’s search engine, the list of results displayed links to two pages of the newspaper mentioning his name in connection with an auction following attachment proceedings. He had requested the newspaper either to remove or alter those pages so that the personal data relating to him no longer appeared or to use certain tools made available by search engines in order to protect his data. He had also requested Google to remove or conceal the personal data relating to him so that they ceased to be included in the search results and in the links to the newspaper. While the Spanish agency had rejected the complaint against the newspaper, it had upheld the complaint against Google, which brought an action before the Spanish courts. It was in the context of this judicial dispute that the case was referred to the CJEU for a preliminary ruling. 43. The CJEU held that the operations carried out by operators of search engines should be classified as “data processing”, of which they were the “controllers” (Article 2 (b) and (d)), regardless of the fact that these data had already been published on the Internet and had not been altered by the search engine. It stated that, in so far as the activity of a search engine could be distinguished from and was additional to that carried out by publishers of websites and also affected the fundamental rights of the person concerned, the operator of the search engine had to ensure in particular that the guarantees laid down by the directive could have full effect. Moreover, given the ease with which information published on a website could be replicated on other sites, effective and complete protection of data users, and particularly of their right to privacy, could not be achieved if they had to obtain first or in parallel the erasure of the information relating to them from the publishers of websites. The CJEU concluded that the operator of a search engine was obliged to remove links to web pages that were published by third parties and contained information relating to a person from the list of results displayed following a search made on the basis of that person’s name, including in cases where the name or information had not been erased beforehand or simultaneously from those web pages and even, as applicable, when its publication on those pages was in itself lawful. 44. The CJEU added that even initially lawful processing of accurate data could, in the course of time, become incompatible with the directive where those data were no longer necessary in the light of the purposes for which they had been collected or processed. That was so in particular where they appeared to be inadequate, irrelevant or no longer relevant, or excessive in relation to those purposes and in the light of the time that had elapsed. The CJEU concluded that if, under Articles 7 and 8 of the European Union’s Charter of Fundamental Rights guaranteeing, respectively, the right to respect for private life and the right to the protection of personal data, the persons concerned had a right to ensure that the information in question relating to them personally should no longer be linked to their name by a list of results, and they were thus entitled to request that the information in question no longer be made available to the general public on account of its inclusion in such a list of results, those rights overrode, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in having access to that information through a search relating to the names of the persons concerned. However, according to the CJEU, that would not be the case if it appeared, for particular reasons such as the role played by the persons concerned in public life, that the interference with their fundamental rights was justified by the preponderant interest of the general public in having, on account of its inclusion in the list of results, access to the information in question. 45. Regarding the difference in treatment between the publisher of a web page and the operator of a search engine, the CJEU found as follows:
“85. Furthermore, the processing by the publisher of a web page consisting in the publication of information relating to an individual may, in some circumstances, be carried out ‘solely for journalistic purposes’ and thus benefit, by virtue of Article 9 of Directive 95/46, from derogations from the requirements laid down by the directive, whereas that does not appear to be so in the case of the processing carried out by the operator of a search engine. It cannot therefore be ruled out that in certain circumstances the data subject is capable of exercising the rights referred to in Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 against that operator but not against the publisher of the web page. 86. Finally, it must be stated that not only does the ground, under Article 7 of Directive 95/46, justifying the publication of a piece of personal data on a website not necessarily coincide with that which is applicable to the activity of search engines, but also, even where that is the case, the outcome of the weighing of the interests at issue to be carried out under Article 7(f) and subparagraph (a) of the first paragraph of Article 14 of the directive may differ according to whether the processing carried out by the operator of a search engine or that carried out by the publisher of the web page is at issue, given that, first, the legitimate interests justifying the processing may be different and, second, the consequences of the processing for the data subject, and in particular for his private life, are not necessarily the same. 87. Indeed, since the inclusion in the list of results, displayed following a search made on the basis of a person’s name, of a web page and of the information contained on it relating to that person makes access to that information appreciably easier for any internet user making a search in respect of the person concerned and may play a decisive role in the dissemination of that information, it is liable to constitute a more significant interference with the data subject’s fundamental right to privacy than the publication on the web page.”
46. In the Guidelines on the implementation of the Court of Justice of the European Union judgment in the case of “Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González” (C-131/12), adopted on 26 November 2014, the “Article 29” Data Protection Working Party stated as follows:
“18. Search engines included in web pages do not produce the same effects as ‘external’ search engines. On the one hand, they only recover the information contained on specific web pages. On the other, and even if a user looks for the same person in a number of web pages, internal search engines will not establish a complete profile of the affected individual and the results will not have a serious impact on him, Therefore, as a rule the right to de-listing should not apply to search engines with a restricted field of action, particularly in the case of search tools of websites of newspapers.
... 21. From the material point of view, and as it’s been already mentioned, the ruling expressly states that the right only affects the results obtained on searches made by the name of the individual and never suggests that the complete deletion of the page from the indexes of the search engine is needed. The page should still be accessible using any other terms of search. It is worth mentioning that the ruling uses the term ‘name’, without further specification ...”
47. The second part of the guidelines concerns common criteria which the data protection authorities are invited to apply in handling complaints following refusals of delisting by search engines. The relevant parts of the eighth and thirteenth criteria read as follows:
“8. Is the data processing causing prejudice to the data subject? Does the data have a disproportionately negative privacy impact on the data subject?
... The data might have a disproportionately negative impact on the data subject where a search result relates to a trivial or foolish misdemeanour which is no longer – or may never have been – the subject of public debate and where there is no wider public interest in the availability of the information.
... 13. Does the data relate to a criminal offence? EU Member States may have different approaches as to the public availability of information about offenders and their offences. Specific legal provisions may exist which have an impact on the availability of such information over time. [Data Protection Authorities] will handle such cases in accordance with the relevant national principles and approaches. As a rule, [Data Protection Authorities] are more likely to consider the de-listing of search results relating to relatively minor offences that happened a long time ago, whilst being less likely to consider the de-listing of results relating to more serious ones that happened more recently. However, these issues call for careful consideration and will be handled on a case-by-case basis.”
48. After the Court of Appeal had given its judgment in the present case, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“the GDPR”) repealed Directive 95/46/EC of 24 October 1995. Article 17 of the GDPR provides as follows:
Article 17
Right to erasure (“right to be forgotten”)
“1. The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay where one of the following grounds applies:
(a) the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed;
... 2. Where the controller has made the personal data public and is obliged pursuant to paragraph 1 to erase the personal data, the controller, taking account of available technology and the cost of implementation, shall take reasonable steps, including technical measures, to inform controllers which are processing the personal data that the data subject has requested the erasure by such controllers of any links to, or copy or replication of, those personal data. 3. Paragraphs 1 and 2 shall not apply to the extent that processing is necessary:
(a) for exercising the right of freedom of expression and information;
... (d) for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) in so far as the right referred to in paragraph 1 is likely to render impossible or seriously impair the achievement of the objectives of that processing;
...”
49. After the delivery of the judgment in M.L. and W.W. v. Germany (cited above), the CJEU delivered two judgments on 24 September 2019 relating to requests for a preliminary ruling concerning the obligation for operators of search engines to grant requests for delisting (“de‑referencing”). The cases concerned are GC and Others v Commission nationale de l’informatique et des libertés (CNIL) (C-136/17, EU:C:2019:773), and Google LLC, successor in law to Google Inc. v Commission nationale de l’informatique et des libertés (CNIL) (C-507/17, EU:C:2019:772). 50. In the first judgment (C-136/17), the CJEU reiterated that the operators of search engines could be required to grant requests for de‑referencing. Nevertheless, when they received a request to that effect, they had to weigh up the right to privacy and the right to protection of personal data of the person making the request for de-referencing against the freedom of information of Internet users potentially interested in accessing the information in question. The CJEU referred to the judgment in M.L. and W.W. v. Germany (cited above), inferring from it that it was for the operator of a search engine to “assess, in the context of a request for de‑referencing relating to links to web pages on which information is published relating to criminal proceedings brought against the data subject, ... whether, in the light of all the circumstances of the case, such as, in particular, the nature and seriousness of the offence in question, the progress and the outcome of the proceedings, the time elapsed, the part played by the data subject in public life and his past conduct, the public’s interest at the time of the request, the content and form of the publication and the consequences of publication for the data subject, he or she has a right to the information in question no longer, in the present state of things, being linked with his or her name by a list of results displayed following a search carried out on the basis of that name” (§ 77). 51. In the second judgment (C-507/17), the CJEU specified that European Union law did not require the operator of a search engine to carry out de-referencing on all versions of its search engine. Nevertheless, it was required to do so on the versions of the search engine corresponding to all the member States and to put in place measures to discourage Internet users conducting a search from one of the member States from gaining access to the links in question found on non-EU versions of the search engine. Furthermore, EU law did not prevent a supervisory or judicial authority of a member State from weighing up the fundamental rights at stake in the light of national standards of protection of fundamental rights and, after weighing those rights against each other, from ordering the operator of such a search engine, where appropriate, to carry out de-referencing concerning all versions of the search engine. THE LAW
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
52. The applicant alleged that the order for him to anonymise the archived version of the impugned article on the website of the newspaper Le Soir constituted a violation of freedom of expression, freedom of the press and freedom to impart information. He relied on Article 10 of the Convention, the relevant parts of which provide:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
Admissibility
53. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions

(a)   The applicant
(i)      Lawfulness of the interference
54. The applicant submitted that the judgment against him had not been based on a clear and foreseeable law enabling him to foresee the legal consequences of his actions. Article 1382 of the Civil Code did not provide any clarification as to the type of restrictions allowed, their purpose, duration and scope or the possibility of reviewing them. The right to be forgotten as established in a handful of decisions of the Belgian courts applied only to newly published material and not to the digital reproduction of an original article that had been archived in unaltered form. 55. The Court of Appeal had drawn an analogy with the CJEU judgment in the case of Google Spain, transposing the principles established in that judgment regarding a search engine to a newspaper publisher. It had equated newspaper publishers with search engines without taking into account the fact that they were not subject to the same obligations, as newspaper publishers were granted exemptions “for journalistic purposes” within the meaning of Article 9 of Directive 95/46/CE, or the fact that the CJEU had expressly distinguished between these two types of activities. 56. Furthermore, the Belgian courts had previously held that the Protection of Private Life Act of 8 December 1992 did not impose a time‑limit on the press beyond which any information had to be disseminated in anonymous form by the person responsible for the processing or by a third party (see paragraph 36 above). That Act also expressly permitted journalists to process judicial data. In the applicant’s view, something that was permitted under a specific law could not be prohibited by the ordinary rules on liability. 57. The applicant added that the few decisions that had sanctioned the right to be forgotten on the basis of Article 1382 of the Civil Code set out criteria that had been the subject of novel, and therefore unforeseeable, interpretations. Finding, as the Court of Appeal had done in the instant case, that the proceedings were not designed to “punish the disclosure of past events, but to obtain the removal of information available online”, amounted to a substantial change in the criteria for applying the right to be forgotten hitherto recognised by the case-law. In the applicant’s view, the extensive interpretation of those criteria by the Court of Appeal conferred an absolute and automatic character on the right to be forgotten which meant that with the passage of time it was possible to obtain the anonymisation of any electronic archive, and hence of all newspaper judicial archives. This would result in a gradual erosion of the integrity of the journalistic archives, if it was possible for anyone to have the information made anonymous. There was even a risk that the activity of archiving itself would disappear. Anonymisation therefore needed to be part of a particularly tight framework ensuring effective judicial review to prevent possible abuse. 58. Lastly, the applicant emphasised that the GDPR, which incorporated the interpretation of the right to be forgotten given by the CJEU in its Google Spain judgment, specifically provided for an exemption for the processing of data “for archiving purposes in the public interest” (Article 17(3)(d); see paragraph 48 above). (ii)    Necessity of the interference
59. In the applicant’s view, the judgment against him had not been strictly necessary in a democratic society. The source of G.’s grievance was the fact that the article was indexed by search engines, rather than the article as such. It was search engines that brought the archives to light. A decision should therefore have been taken to de-index the article rather than anonymising it, as this was less restrictive of freedom of expression. 60. There were significant issues at stake in the present case, as requests for anonymisation posed a serious threat to digital archiving. Recognising a right to be forgotten with regard to journalistic archives entailed a risk that this right would become a right to have information deleted or rewritten and hence a risk of undermining freedom to convey information and the very concept of archives, which presupposed the existence of documents in their original unaltered form. The order for the applicant to anonymise the archive in question would have a chilling effect on freedom of expression and freedom of the press and would ultimately prompt him to cease electronic archiving. 61. Furthermore, the Belgian courts had not weighed up the competing interests at stake in accordance with the criteria established in the Court’s case-law. In particular, the assessment as to whether G. was known to the public had been incompatible with the Court’s case-law, according to which individuals could not complain of a loss of reputation which was a foreseeable consequence of their own actions, such as the commission of a criminal offence. 62. As to the severity of the measure imposed, the applicant submitted that other measures had existed that were less restrictive of freedom of expression, such as making an addition to the news item published at the time, referring to the order rehabilitating G., or the delisting of the article by search engines such as Google. With regard to the last of these, the applicant alleged that it had been up to G. to submit a request for delisting to the operators of the search engines. Nevertheless, in an effort to assist the applicant, the newspaper’s legal department had itself requested Google to delist the article in question but had received no response. 63. The applicant inferred from this that the reasons given by the Court of Appeal and upheld by the Court of Cassation were insufficient to demonstrate that the interference had been “necessary in a democratic society”. The Court of Cassation had merely found that the Court of Appeal judgment had been legally justified, without replying to the arguments raised by the applicant. 64. The applicant added that the right to be forgotten could not be transformed into a right for each individual to rewrite his or her personal history. Criminal convictions that had been the subject of public proceedings reported on by the press fell into the category of information that could legitimately be retained by the media. The information could be delisted if the relevant criteria were satisfied, but it could not be censored. (b)   The Government
(i)      Lawfulness of the interference
65. The Government observed that the foreseeability of the law should not translate into excessive rigidity. In the present case the judgment against the applicant was based on the provisions of the Convention and the Constitution guaranteeing the right to protection of private life – of which the right to be forgotten formed a part – and on Article 1382 of the Civil Code, which together constituted a sufficiently foreseeable legal basis. Hence, the interference with freedom of expression did not stem either from the Belgian legal literature or case-law or from the CJEU’s Google Spain judgment. 66. It was acknowledged in the Belgian ordinary rules on liability that a violation of the right to respect for private life, of which the right to be forgotten was a part, constituted a fault resulting from a breach of a written rule of conduct. Hence, the applicant could not have been unaware that he might be held liable. Article 1382 of the Civil Code was sufficiently accessible, clear, precise and foreseeable. Taken together with Article 8 of the Convention, it formed a sufficiently foreseeable basis justifying interference with freedom of expression. 67. The fact that other courts, whether in Belgium or elsewhere, had reached a different conclusion was irrelevant in so far as those courts had applied the same reasoning, which had resulted in different outcomes depending on the specific circumstances of the cases before them. In any event, any exemptions allowed for journalists were not absolute and had to be weighed up in the light of the criteria established by the Court. (ii)    Necessity of the interference
68. The Government pointed out that neither the public’s right to be informed about past events nor the right to create online archives was an absolute right. In their view, the initial interference with G.’s exercise of his right to respect for his private life stemmed from the decision of the publisher of Le Soir to publish the information in question and to keep it online, albeit without drawing the public’s attention to it. The domestic courts had examined all the legal and technical arguments advanced by the parties and had imposed a proportionate measure on the applicant, taking into account the range of different measures proposed by him. In particular, they had deemed it insufficient to add a comment to the online article. The Court of Appeal had opted for the anonymisation of the article after weighing up the interests at stake. The Government stressed that the integrity of the archives as such was not impaired by the judgment given against the applicant, but merely the public’s access to the online version of the article. The paper archives remained intact and people like researchers could still request access to the non-anonymised digital version of the article. 69. The case was to be distinguished from that of M.L. and W.W. v. Germany (nos. 60798/10 and 65599/10, 28 June 2018) in view of the particular circumstances of the case, and especially the fact that G. was not well known, the fact that he had had no contact with the media and the minimal interest of the events reported on in the article. The information had become damaging precisely because of the passage of time, and the article had been published online more than fifteen years after publication of the print version. The present case was therefore also to be distinguished in terms of the facts from the judgment in Węgrzynowski and Smolczewski v. Poland (no. 33846/07, 16 July 2013). 70. In conclusion, the Government observed that the Belgian courts had determined a specific dispute between two parties in the context of a civil action for damages while seeking to ensure that a balance was struck between two competing fundamental rights claimed by the parties. They had taken their decisions after examining the criteria established by the Court and striking a reasonable balance between the interests at stake. There were therefore no sufficiently strong reasons for the Court to substitute its assessment for that of the domestic courts. Submissions of the third-party intervener
71. The third-party intervener, G., was the person who had requested anonymisation of his name in the article in issue. In his view, the applicant had displayed excessive zeal in objecting to the request. As to the facts, he pointed out in particular that although he had himself, in the proceedings before the Court of First Instance, proposed the use of a no-index tag as an alternative to anonymisation, it was the applicant who had subsequently rejected that solution. 72. In G.’s view, Article 1382 of the Civil Code, taken in conjunction with the right to be forgotten as recognised by the case-law and legal literature as an integral part of the right to respect for private life, constituted a sufficiently foreseeable legal basis satisfying the requirements of Article 10 § 2 of the Convention. 73. As to the necessity of the interference, he stressed the fact that the article belonged to the past, which meant that it attracted a lesser degree of protection; the significant repercussions of re-publication of the article on the Internet as a result of the publication of the archives online; and the complete lack of any public interest in the inclusion of his full name in the article. Furthermore, it was not a question of requiring the media to remove all personal data from their archives as a blanket measure, or to remove the data of anyone who so requested, but of requiring them to assess the fundamental rights at stake in context.

Outcome for Article 10: no_violation