On 21 January 2022, ARTICLE 19, together with 15 civil society organisations, media outlets and experts, submitted a third-party intervention to the Grand Chamber of the European Court of Human Rights in a ‘right to be forgotten’ case against a Belgian media outlet. In the submission, we argue that media archives serve an important function for both the media outlets and for the public. Interfering with the integrity of the archives and applying the right to be forgotten against them would be akin to rewriting history and will have serious impacts on freedom of expression and access to information.
The case of Hurbain v Belgium concerns Le Soir newspaper, which in 1994 published an article about a fatal car accident that led to a conviction of the driver, Mr G. In 2008, the newspaper digitalised its archives. Mr G wrote to the newspaper in 2010 requesting them to remove the article from its media archives or else remove his name. After Le Soir refused, Mr G. sued the editor of Le Soir, Mr Hurbain. G. argued that he was a physician and that his (prospective) patients could easily find the information about him through an online search. The Belgian courts ordered Le Soir to anonymise his full name in the disputed article. Mr Hurbain then brought the case to the European Court of Human Rights (the European Court), arguing the violation of his right to freedom of expression.
In June 2021, the European Court held that the order to anonymise the name of the individual in the media archives did not violate Mr Hurbain’s right to freedom of expression, including because, among other things, G. was not a public figure and the article created a ‘virtual criminal record’ for G. The case is currently pending a review by the Grand Chamber, the highest judicial body of the European Court, with the hearing scheduled for March 2022.
In our submission, ARTICLE 19 and others highlight the importance of media archives as a key source for the media, education and historical research. We also warn against the expansion of the ‘right to be forgotten’ to newspapers articles, far beyond the original scope of this ‘right’. Requiring newspapers to anonymise articles in their digital archives would restrain investigative work of journalists and other actors and put them under constant fear of litigation over their previous legitimate publications.
The submission highlights the following:
- Although the ‘right to be forgotten’ is still an evolving issue, courts around the world have generally applied it against search engines (or against social media) but have generally refused requests made against news outlets or news archives. The courts in Brazil or Japan even totally refused to apply this ‘right’ against search engines, especially if the information is required for the performance of a task carried out in the public interest.
- The integrity of online media archives must be preserved: If the integrity of media archives was undermined, it would allow individuals and even governments to mould the historical narrative and possibly prevent accountability. Applying the ‘right to be forgotten’ to media archives can also lead to an enormous number of requests to media outlets and online archives and create an enormous or additional administrative burden for the media.
- We offer a list of issues that the Court must consider when balancing the right to freedom of expression and privacy online. These should include whether a claimant has suffered substantial damage or harm due to the availability of the content linked to their name; whether sufficient weight has been given to the purpose of the media archive, i.e. the relevance of media reports with the passage of time: When published, information may be of little value but may gain it over time; and the importance of the right to receive information in this context.