UK publishers could be impacted by a European Court judgment which appears to extend the “right to be forgotten” from search engines to news websites.
Under European Union law, search engines such as Google can be compelled to remove reports of historic crimes perpetrated by named individuals from their search results. They are forced to do so by the “right to be forgotten”, which ensures people can request that old information about them online be removed from search results on request.
Last month the European Court of Human Rights (the court of the Council of Europe which the UK remains part of) rejected a free speech complaint brought by Belgian French-language newspaper Le Soir publisher Patrick Hurbain concerning a right to be forgotten judgment in his home country. The ruling ordered him to anonymise the name of a driver responsible for a deadly car accident in 1994 in Le Soir’s electronic archives. The original report of the accident, which caused the death of two people and injured three others, had mentioned the driver’s full name, which has since been replaced with the letter X.
Belgian law recognises a right to be forgotten as “integral” to Article 8 of the European Convention on Human Rights, which provides the right to respect for private and family life, and ruled that in this case, Article 10, which provides the right to freedom of expression, had not been violated.
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The ECHR considered that, because the driver had since served his sentence and had been rehabilitated into society, keeping the article online would leave a “virtual criminal record” that could cause “indefinite and serious harm to the driver’s reputation”.
Both sides now have three months to request for the case to be referred to the ECHR Grand Chamber for a final ruling.
Barrister Greg Callus told Press Gazette there were “two regimes at play” in this case: the first being the European Court of Human Rights in Strasbourg, which oversees the compliance of Council of Europe states with Convention rights and the second being the Court of Justice of the European Union in Luxembourg, which oversees EU law including data protection such as General Data Protection Regulation (GDPR).
He said: “This recent case is really interesting because it is the Strasbourg Court, not the Luxembourg Court, doing what amounts to a ‘right to be forgotten’ case through the medium of Convention Rights (Articles 8 and 10) not through EU data protection law.
“There isn’t a ‘change’ in the law here – it’s always been theoretically possible to bring RTBF cases against the media, but the breadth of the journalism exemption in data protection meant that few claimants bothered trying. That is likely to change now: claimants who are not public figures with less-serious historic convictions, in particular, might revisit whether they should sue, but I’d still expect most to go after search engines first, and only go against the media organisation directly if they really have to.
“It’s also important to note that this is the Strasbourg Court saying that the Belgian Courts did not impermissibly infringe Article 10 rights of the newspaper by forcing anonymisation. But each Convention state has a ‘margin of appreciation’, and strikes the balance between Article 8 and Article 10 in different ways.
“Just because the Strasbourg Court said this was an acceptable balance under Belgian law, it does not mean that English law strikes – or would strike – the same balance, or that the Strasbourg Court would require it to do so. If an English criminal sought to anonymise newspaper articles from years ago about his conviction as no longer relevant, and the English courts refused relief, the Strasbourg Court might well uphold that decision.
“UK publishers will need to have regard to this decision if they get post-publication requests to remove names or identifying information from old articles (and the Strasbourg Court was clear they only had to consider historic articles upon receiving requests – there isn’t an obligation to keep monitoring the archives). Such requests can no longer be considered just through the lens of data protection (where the UK journalism exemption is very broad) and need to be considered through the prism of Convention Rights.”
Media law consultant and journalist David Banks suggested that UK publishers may be looking at the judgment with “some concern”.
He said: “The original judgement’s ‘Right to be forgotten case’ applied to Google turning off search results, which didn’t actually prevent the newspaper from publishing the material and continuing to keep it on their website. Here we’ve kind of gone a step further where the courts have said the newspaper website should anonymise the actual reports of this court case.
He added: “UK courts take into account judgments from the European Court of Human Rights. Facts will differ from case to case – so if a UK court may decide it feels that facts in a case for it aren’t the same as this particular case, they may decide in a different way. It would then be open for people involved in the UK case to take an appeal to the European Court of Human Rights themselves, if they felt that the UK courts have not ruled properly in a particular case.
“So it potentially has an effect on decisions of UK courts, but it really will be a question of whether they feel that, in light of UK law, they need to follow this judgment – because the thing is that with the European Convention of Human Rights, as well as the rights of privacy, there are also the rights of freedom of expression.”
When asked if the judgement should be of concern to UK publishers, Reed Smith LLP partner Carolyn Pepper said: “It is not yet clear what approach the UK courts will take to the right to be forgotten post-Brexit but the UK courts must still take into account decisions of the European Court of Human Rights and so UK publishers do need to give careful consideration to the European Court of Human Rights’ decision which strengthens the right to be forgotten.”
She added: “The Court’s decision was that the right to freedom of expression did not in this case trump the individual’s right to be forgotten under Belgian law (as opposed to UK law) but this decision does emphasise that it will not always be an answer to a case brought under privacy laws to argue that the right to freedom of expression of publishers should prevail. UK publishers also have to take into account the UK GDPR which provides for a right to erasure in certain circumstances.”
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