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The order for the publisher of the newspaper Le Soir to anonymise the details of a convicted offender on grounds of the “right to be forgotten” did not breach his freedom of expression
In today’s Grand Chamber judgment1 in the case of Hurbain v. Belgium (application no. 57292/16) the European Court of Human Rights held, by a majority (12 votes to 5), that there had been:
- no violation of Article 10 (freedom of expression) of the European Convention on Human Rights.
The case concerned the civil judgment against Mr Hurbain, as publisher of the daily newspaper Le Soir, ordering him to anonymise, on grounds of the “right to be forgotten”, an article in the digital archives mentioning the full name of the driver responsible for a fatal road-traffic accident in 1994.
The Court noted that the national courts had taken account in a coherent manner of the nature and seriousness of the judicial facts reported on in the article in question, the fact that the article had no topical, historical or scientific interest, and the fact that the driver was not well known. In addition, they had attached importance to the serious harm suffered by the driver as a result of the continued online availability of the article with unrestricted access, which had been apt to create a “virtual criminal record”, especially in view of the length of time elapsing since the original publication of the article. Furthermore, after reviewing the measures that might be considered in order to balance the rights at stake – a review whose scope had been consistent with the procedural standards applicable in Belgium – they had held that the anonymisation of the article did not impose an excessive and impracticable burden on the applicant, while constituting the most effective means of protecting the driver’s privacy. Accordingly, and regard being had to the States’ margin of appreciation, the Court found that the national courts had carefully balanced the rights at stake in accordance with the requirements of the Convention, such that the interference with the right guaranteed by Article 10 of the Convention on account of the anonymisation of the electronic version of the article on the website of the newspaper Le Soir had been limited to what was strictly necessary. It could thus, in the circumstances of the case, be regarded as necessary in a democratic society and proportionate.