Hurbain v Belgium - Right to be Forgotten

The European Court of Human Rights last week ruled in the case of Hurbain v Belgium Mr Hurbain's newspaper, Le Soir, published an article relating to a driver's conviction for his involvement in a fatal road accident in 1994 and the case relates to the driver's 'right to be forgotten' in relation to this article. The right to be forgotten, or the right to erasure as it is referred to in both the UK and EU GDPR, is the right to have personal data erased by a data controller. It is not an absolute right in the UK and only applies in specific circumstances such as if the data is no longer necessary for the purposes it was originally processed for or if the data subject objects to the data being processed and there is no overriding legitimate interest in processing it.

The article was first published in print in 1994 and then online in 2008. The driver had asked in 2010 for the article to either be anonymised or removed from the newspaper’s online archives. The driver issued proceedings in 2012 in order to obtain anonymisation which was granted by the Belgian courts.

Mr Hurbain appealed in 2014 but the Court of Appeal upheld the judgment. Mr Hurbain attempted to appeal on various points of law but in 2016 the Belgian Court of Appeal dismissed his appeal and held that the article as it appeared amounted to a ‘virtual criminal record’. They held this should be avoided, especially as the driver was rehabilitated and had served his sentence. The Court of Appeal considered that the most appropriate and proportionate way to balance the newspaper's right to freedom of expression with a respect for the driver’s private life was to anonymise his name in the article with the letter ‘X’.

The European Court of Human Rights was asked to rule whether the interference with the newspaper’s Article 10 rights to freedom of expression had been necessary. The judges agreed 6 to 1 with the Belgian domestic court. They held that the article, which is now 20 years old, has no newsworthy value and that there was no public interest in identifying the driver as he was not a public figure. They also commented that, as the article was published online, it would be more likely to be accessed by the public and the driver’s identification could affect his reintegration into society. Furthermore, the court did not consider that the anonymisation of the driver would affect the integrity of the article and therefore ruled that the Belgian domestic courts had met the proportionality of interference requirement in their decision to anonymise the article. The parties have 3 months to refer the case to the Grand Chamber for a final ruling. The court did comment that there was no obligation on news companies to regularly check their online archives.

The extent to which this ruling will be adopted by the UK court is not yet clear. Similar cases have historically been won in the UK domestic courts using data protection legislation and the 1974 Rehabilitation Act but judges have indicated that the facts of each individual case should be considered when ruling on the ‘right to be forgotten’. For example, in April 2018 in NT 1 and NT 2 v Google LLC, two claimants known as NT 1 and NT 2 sought to have Google links to articles about criminal convictions, which were reported in the press at the same time and which related to their respective business activities, removed. Despite many factual similarities in the cases, Warby J ruled a delisting order be made in the case of NT 2, who had been involved in ‘controversial business’ relating to ‘its environmental practices’, as there was no reason to expect the wrongful activity to be repeated and as NT 2 had a young family. Warby J considered that the continued existence of the article interfered with his Article 8 rights to a private and family life. NT 1 was connected to ‘a controversial property business that dealt with members of the public’ and Warby J dismissed his claim as the information was ‘public in character’ and as he remained in business, there was a risk he could repeat past actions.