A recent decision of the European Court of Human Rights has strengthened the ‘right to be forgotten’ for private individuals, examining it in the context of the right to freedom of expression, and right to respect for private and family life.
In Hurbain v Belgium, the editor of Le Soir, a Belgian newspaper, appealed an order requiring him to anonymise a historic article naming a driver “G” convicted of a fatal road accident over 20 years ago. G was considered rehabilitated under Belgian law. G claimed Le Soir’s archived article, which appeared online, was damaging his reputation. The Belgian Court of Cassation upheld the decision of the lower courts, ordering Le Soir to anonymise the article.
The European Court considered the right to freedom of expression, Article 10 of the European Convention on Human Rights, balanced against G’s right to respect for private and family life under Article 8 of the Convention, and found the order an interference with Article 10 “necessary in a democratic society.”
The Court emphasised both the importance of media archives in society’s understanding of contemporary history, and also of the rights of ex-offenders to be rehabilitated and re-integrated in society.
The Court’s decision shows that matters that were once public, such as criminal convictions, can in time effectively become private. Individuals seeking the erasure of personal information therefore have the option of bringing privacy as well as data protection claims. However, it was of importance to the Court that G was a private person unknown to the general public at the time of his request, and that the case had not received media attention at the time or since. It seems that those in the public eye will find it much more difficult to invoke the ‘right to be forgotten’.