STRASBOURG, France (CN) — Lawyers for Belgian newspaper Le Soir told Europe’s top rights court Wednesday that affirming a decision supporting the so-called "right to be forgotten" would curtail the practice of journalism.
In 2021, the European Court of Human Rights upheld a ruling by a Belgian court which ordered the newspaper to remove the name of a man who killed two people in a car crash in 1994. Le Soir publisher Patrick Hurbain has been fighting the order for years, making a final appeal before the Strasbourg-based rights court's Grand Chamber on Wednesday.
The case has pitted privacy advocates against media defenders in a legal battle that has lasted more than a decade. Following a 2012 complaint by the driver who caused the car accident, the Belgian high court ordered the country's top French-language newspaper to anonymize its online archive.
Listen to the latest episode of Courthouse News' podcast Sidebar for a detailed discussion on the "right to be forgotten"
Le Soir claims this undermines the freedom of the press and negates the concept of an archive, arguing that requiring it to change its archive was an overreach by the national court and created a dangerous precedent.
“Press archives should remain the memory commons that they have always been,” lawyer Sandrine Carneroli told the Court of Human Rights' 17-judge panel on behalf of Le Soir.
Le Soir reported in 1994 that a man, identified in court documents as G, was driving in the wrong direction on a highway while intoxicated when he crashed head-on into another car. Three people in the car were seriously injured and two women died, burned to death after the car ignited. G was convicted for the crime and served six years in prison.
Several years later, the newspaper created online archives of its newspapers dating back to 1989, including the story about the wreck. G asked the newspaper to remove the article, or at least anonymize the story, as he had served his time and it was no longer relevant. Le Soir refused but said it would ask Google to delist the story from its search results. G found this solution insufficient and filed a complaint with a Belgian court.
While his legal challenge was underway in Belgium, the European Court of Justice, the European Union’s top court, ruled in a landmark case that EU residents have “the right to be forgotten.” In that case, a Spanish man complained to Spanish authorities that Google wouldn’t remove a link to forced property sale listings which included his name and information about his failure to pay taxes. In its 2014 judgment, the Court of Justice found that the information was no longer relevant and, as he wasn’t a public figure, Google should remove the listings from its search results. This right was later codified in EU law in the 2018 General Data Protection Regulation.
In its 2021 ruling in the Belgian case, the Court of Human Rights concluded the order to anonymize the archive was not a violation of the European Convention on Human Rights. The 1953 convention, which created the court, upholds the political and civil rights of people living in Europe.
Belgium’s lawyer Isabelle Niedlispache described the rights court's earlier ruling as the “least restrictive solution.” She noted that there was no obligation for the press to regularly check their archives and that the physical archive would remain unchanged.
The newspaper disagreed. Its lawyers argued the least restrictive option would simply be delisting the articles from internet search results.
“Search engines are economic machines,” Carneroli said, “not protected by the Convention.”
The court is expected to issue a ruling before the end of the year.
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