The so-called ‘right to be forgotten’ took another step forward in human rights law today when judges of the European Court of Human Rights ruled in favour of a man with historical convictions relating to a fatal road accident. In Hurbain v Belgium, the editor of Belgian newspaper Le Soir appealed a domestic order ordering him to anonymise an article in its electronic archive naming the driver, convicted in 2000.
After serving his sentence and being rehabilitated in domestic law, the driver applied in 2010 for the article to be removed from online archives or anonymised. In 2016 Belgium's Court of Appeal ruled that to keep the article online could cause indefinite and serious harm to the driver’s reputation, giving him a 'virtual criminal record'. It found that the most effective way to ensure respect for his private life without disproportionately affecting freedom of expression would be to anonymise the article by identifying the individual as 'X'.
On appeal, the ECtHR was asked to rule on whether the interference with the editor's Article 10 rights had been necessary. In a chambers ruling, judges agreed by a majority of six to one with the domestic judgment, finding that the online article was of no value in terms of newsworthiness and that, 20 years after the events, the identity of a person who was not a public figure did not enhance the public interest. Meanwhile online anonymisation would not affect the integrity of the original article, which would remain in the print archives.
The judges therefore found that the domestic courts had been entitled to conclude that the requirement of proportionality of interference with the right to freedom of expression had been met. There had therefore been no violation of Article 10.
The court added that its conclusion did not imply any obligation on the media to check archives on a systematic and permanent basis. Both sides have three months in which they can refer the case to the Grand Chamber of the court for a final ruling.
The extent to which the ruling will be taken into account by UK courts remains to be seen. ‘Right to be forgotten’ cases in England and Wales have been won under data protection legislation and the 1974 Rehabilitation of Offenders Act but judges have indicated that cases should turn on the facts.