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09.09.2016

BE: Court of Cassation rules on the rights to be forgotten

by Gianna Iacino
On 29 April 2016, the Belgian Court of Cassation decided that a newspaper has to anonymise an article about a deadly car accident in its online-archive.

The plaintiff is a medical doctor. More than 20 years ago, in 1994, the plaintiff caused a car accident due to drunk driving. Two people died in that accident. The plaintiff was convicted and rehabilitated in 2006. At the time of the conviction in 1994, the Belgium daily newspaper “LeSoir” published an article about the accident, naming the doctor by name. A few years later, in 2008, the newspaper opened a freely accessible online-archive, which included the article about the accident. The plaintiff asked the newspaper to anonymise the article, which the newspaper refused to do. Therefore, the plaintiff brought an action against the newspaper and won in the first two instances. The newspaper appealed the decisions, but the Court of Cassation dismissed the appeal.

The Court had to balance the plaintiff’s right to privacy according to art. 8 of the European Convention on Human Rights (ECHR) with the newspaper’s right to freedom of expression according to art. 10 ECHR. The Court noted that the right to freedom of expression entails the right to operate an online archive. Also, the Court noted that the right to privacy entails the right to be forgotten and that convicted criminals can have the right that their name is no longer mentioned in connection with the crime they have committed.

In the necessary balance of interest, the Court stated that the report about a 20-year old car accident cannot be considered news. Neither does a public interest exist in the identity of the perpetrator, especially because he is not a public figure. The Court also dismissed the newspapers argument for the necessity of a comprehensive archive. The obligation to anonymise an article only in the online-archive would have no impact on the paper archive of the newspaper. The Court obliged the newspaper to delete the plaintiff’s name from the article.

Gianna Iacino, LL.M., is a Research Associate at the Institute for European Media Law (EMR), Saarbrücken/Brüssel

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The verdict is available in French language here.

Download the article in German.



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