The right to be forgotten and newspapers online

Issue:

I was once the subject of an article that appeared online and every time my name is searched on the internet this article pops up. However, I no longer wish to be confronted with this. Can I do something about this?

The digital age in which we live involves the storage of data on the internet that can be retrieved at any time.

In some cases this can be harmful. Just think of someone who has been convicted of theft in the past and about which an article has appeared in a digital newspaper. It goes without saying that being able to permanently recall such a publication can make the life of the person concerned more difficult. For example when applying for a new job.

There is no doubt that these publications are actually allowed to take place. After all, Article 10 of the European Convention on Human Rights provides for a right to freedom of expression.

On the other hand, it may seem unjust that this data could be found forever online. This could then be seen as a violation of Article 8 of the European Convention on Human Rights, which provides for a right to respect for private life.

With its judgment of 13 May 2014, the Court of Justice attempted to deal with the aforementioned problem by introducing a right to be forgotten.

The Court held that the rights as set out in the European Convention on Human Rights are not absolute and that it can therefore be demanded that the data can no longer be made available.

However, the European Court of Justice has limited its judgment to search results on search engines (such as Google or Bing), and has not ruled on the relevant articles in online newspaper archives.

Anyone who no longer wants his name to appear in searches through search engines can submit a request to these search engines to delete this data. The best-known search engine “Google”, has even put a form online after the intervention of this judgment to submit such requests.

However, the right to be forgotten is not absolute either.

This is also evident from the judgment, in which the Court of Justice has left the door open for the search engines, while still allowing them to retain some of their sovereignty by stating that there may be special reasons that the information would remain accessible.

Consider, for example, public figures or recent facts.

The call for a right to be forgotten is a “hot topic”  this appears from the fact that this case law has been converted into legislation, where the right to be forgotten is confirmed from today in the General Data Protection Regulation, which is in application since 25 May 2018.

While an important first step has already been taken, since searching on the Internet usually starts with search engines and not in online newspaper archives, it remains a disadvantage that the Court of Justice has not ruled on this. When a search result is deleted from a search engine, the publications themselves will of course continue to exist.

On this point, the Belgian Court of Cassation intervened with a judgment of April 29, 2016 confirming a judgment of the Court of Appeal in Liège dated 25.09.2014, in which it was ruled that the publisher of the digital newspaper archive is responsible for the harm to a person, as a result of the publication of his name in an online article.

It was thus considered that the right to be forgotten can justify an interference with the freedom of the press.

The Supreme Court ruled that in Belgian law there is a right to be forgotten, as an element of the right to respect for private life.

It was considered that the article was completely anonymous. It should be noted that this can always be the only objective. One cannot ask to delete the article completely as this would imply that the history would be rewritten. It cannot be intended to go that far.

While this is the starting point, some nuance is in order.

The assessment of a right to be forgotten will in any assumption depend on the context, and is therefore not automatic. A balance will always have to be struck between the right to privacy and the freedom of expression, and only when the right to privacy is important will there be a right to be forgotten. It can be deduced from this, among other things, that one cannot invoke the right to be forgotten when it comes to recent facts.