Casenote: Hurbain v Belgium
The European Court of Humans Rights (ECtHR) has found no violation of Article 10 (freedom of expression) in the case of Hurbain v Belgium and thus ordered Le Soir newspaper to anonymise the identity of a rehabilitated offender to respect his right to be forgotten.
In 1994, Le Soir newspaper, one of Belgium's leading French-language newspapers, published a piece in print about a fatal car accident in which two people were killed and three people were injured. The piece identified the driver responsible for the crash who was convicted in 2000 and was rehabilitated in 2006.
In 2008, the 1994 print piece was converted to electronic format and was published on Le Soir’s main website. The article became available to anyone who searched the name of the driver concerned on Google or any other search engines. Two years later, the driver contacted Le Soir and asked them to remove the article or at least remove his name. Le Soir’s legal department refused to do so but said that they would give notice to the administrator of Google to dereference the article.
In 2012, the driver sued Mr. Hurbain, the publisher of Le Soir, and was largely successful before the domestic courts. The Court of Appeal, in particular, had taken the view that to keep the article online could cause indefinite and serious harm to the driver’s reputation, giving him a “virtual criminal record”. It had thus found that the most effective way to ensure respect for his private life, without disproportionality affecting Mr. Hurbain’s freedom of expression, would be to anonymise the electronic article piece.
Mr. Hurbain did not think that the domestic courts had reached the correct conclusion and had unduly interfered with his freedom of expression. He, therefore, appealed the decision to the ECtHR.
However, in a chamber's judgment delivered on 22 June 2021, the ECtHR considered that the domestic courts had properly weighed up the driver’s right to respect for his private life against Mr. Hurbain’s freedom of expression. The ECtHR considered that the anonymisation of the electronic article would not affect the text of the original article and would be the most effective and proportionate measure.
In addition, the ECtHR considered that there was an absence of newsworthiness or benefit to the public interest of the article. A substantial period had elapsed since the accident and the driver involved was not a public figure, nor was he a holder of public office.
The ECtHR explained that the conclusion it had reached in the present case did not involve any obligation for the media to check their archives on a systematic and permanent basis. With regard to the archiving of articles, they would not be required to make such verification, and therefore to weigh up the various rights at stake, unless they received an express request to that effect.
Click here to read the Hurbain v Belgium press release.
Click here to read a piece by KOD Lyons of the implications of Hurbain v Belgium on the right to be forgotten.