We are in the era of information and technology, a period in which freedom of expression and freedom of the press have become true trends or even reasons for dispute. Thus, although the dynamics of the digital sphere have provided online news publications with the opportunity to target the widest possible audience, both European legislation and judicial authorities have imposed certain limitations in this regard.
How far can freedom of the press or freedom of expression go in relation to the right to be forgotten, and which of these rights takes precedence in the event of a conflict?
Although the answer to this question may vary depending on the specifics of each specific case analyzed, in the case of Hurbain v. Belgium[1], the European Court of Human Rights (ECHR) ruled that, in certain situations, press websites have an obligation to anonymize the names of individuals mentioned in articles published in the virtual space.
The decision of the Strasbourg court concerns a civil judgment ordering the anonymization of an article from the digital archives of the newspaper Le Soir, in which the full name of a driver involved in a fatal road accident in 1994 was mentioned. In this regard, analyzing the perspective of competent national courts, the ECHR considered that the right to respect for the private life of the individual affected by a certain processing of their personal data – and implicitly, the right to erase or delete such data – takes precedence over the freedom of expression of the press.
This verdict is not, obviously, issued arbitrarily and cannot be extended to all cases of conflict between the right to private life and data erasure and the freedom of the press or expression, as the circumstances of each case must be considered.
What were the arguments behind the ECHR’s decision?
Firstly, the reasoning adopted by the ECHR is based on the fact that the factual aspects mentioned in the article in question date back more than two decades and, consequently, although they are no longer relevant or current, scientifically or historically, they continue to infringe on the right to the private life of the individual mentioned in the article.
Furthermore, the priority given to the right to be forgotten was also based on the argument that the author of the accident (i.e., the individual in question) was not a person of notoriety, a public figure, so their private sphere should have received considerable legal protection in this regard.
Last but not least, it should be noted that, alongside the notoriety of the individual in question, the ECHR has enunciated in the cases it has been called upon to rule on other criteria to guide both national courts and publications in balancing freedom of expression and the right to respect for private life with regard to publications. Without being exhaustive, these criteria include whether the dissemination of information containing personal data contributes to a public debate of general interest, the method of obtaining information, the accuracy of the information, and an examination of the prior conduct of the individual in question in relation to data processing.
Therefore, the dissemination of the content of the article analyzed by the ECHR in the digital sphere inevitably resulted in the creation of a true “virtual criminal record,” even though the individual convicted had been rehabilitated in accordance with legal requirements.
It should also be noted that the specialized doctrine recognizes a so-called “right to rehabilitation”[2], seen as a dimension of the broader spectrum of the right to erasure of personal data conferred by the GDPR. This right recognizes the prerogative of the individual affected to request the removal of certain personal data from their criminal record for the purpose of their social reintegration. Thus, the individual in question would have the opportunity to build a new image, an opportunity they would not have if information about previous convictions continued to be included in the content of a publication.
In conclusion, although we cannot clearly indicate the limits of the exercise of press freedom, as these are analyzed on a case-by-case basis in the context of each specific situation, we can conclude that freedom of expression and the press are not absolute values. They must be exercised under certain conditions and with various limits to avoid infringing on the rights conferred on the individuals affected.
The lawyers at Grecu Partners are involved in numerous cases similar to the one mentioned above, supporting both individuals in their efforts to exercise the right to be forgotten and journalistic publications and media outlets in demonstrating the primacy of press freedom. Often, such situations can be sensitive and open to interpretation, which is why legal advice from a specialized lawyer is often valuable.
➡📞Contact: (+4) 031 426 0745 – office@grecupartners.ro
Mihaela Bălău – Attorney at Law
[1] ECHR Judgment of 4 July 2023 in the case of Hurbain v. Belgium, Application No. 57292/16.
[2] See in this regard Voss, W.G., Renard, C.C., Proposal For An International Taxonomy On The Various Forms Of The “Right To Be Forgotten”: A study on the convergence of norms, p. 299, 2016, as well as Faisal, K., Balancing between Right to Be Forgotten and Right to Freedom of Expression in Spent Criminal Convictions, Security and Privacy, vol. 4, issue 4, 2021.
