The advent of nearly unfettered access to information—the likes of which can be preserved online forever—raises as many questions as it answers. The Internet is an empowering tool that has redefined how we as humans interact and learn about one another; but such transparency inevitably comes with a cost.
For instance, what if a newspaper made available online an article describing a tragic accident you were responsible for nearly 20 years ago? And what if a Google search of your name listed that article as one of the top results?
That is precisely what happened to a Belgian doctor in 2008, when newspaper Le Soir made part of their archives available online; including a 1994 article detailing the doctors drunk driving accident that took the life of two people. The doctor had paid his societal dues for the crime, and in 2010—after the Editor in Chief of Le Soir refused a request to remove his name from the article—the doctor applied to a Belgian court seeking an order that the article be anonymised. This was the beginnings of the Right to Be Forgotten laws in Europe.
The trial court granted the anonymisation request in 2013, and ordered Le Soir to replace the doctors name with the letter “X” in the article. On September 25, 2014, a Belgian Court of Appeals upheld the trial court’s ruling, noting the delicate balancing between the right to freedom of expression and the right to a private life under the European Convention on Human Rights (ECHR).
The Court of Appeals in Liege held that: (1) the facts of the 1994 accident had no news value; (2) removing the doctors name changed nothing about the substance of the article, as there is no public interest in knowing the identity of non-public figure responsible for an accident nearly 20 years ago; and (3) anonymising the electronic version of the article still means the original paper archives remain intact, thus any arguments for preserving the full integrity of the archives fell short.
Le Soir then appealed to the Belgian Court of Cassation (the highest court in Belgium) seeking to have the judgment set aside.
The Court of Cassation echoed the appellate court, basing their decision on the balancing act between the rights enumerated in Articles 8 & 10 of the ECHR, which includes the “Right to Be Forgotten” (RTBF) and the right of a free press, respectively. The Court held that the existence of an online article describing a long since past event, such as drunk driving, is likely to cause someone like the doctor a disproportionate amount of damage compared to the benefits of unfettered freedom of expression and press. Here, the RTBF prevails. As a result, the Court of Cassation ordered the doctors name be removed from the online article.
Normally in a case like this a court orders the newspaper and/or a specific search engine to take steps ensuring that the article in question does not appear in search engine results. This case, however, marks the first time, either in the U.S. or abroad, that a judicial body ordered an online article anonymised.
A different set of circumstances, however, could have produced a much different result. It is clear the Belgian courts did not buy the arguments in favor of maintaining the full integrity of Le Soir’s online archive—most likely because they saw the archiving of the online article as a new disclosure of a previous conviction which could interfere with the doctors Right to be Forgotten (RTBF).
What is not clear is whether any arguments for a less drastic remedy were entertained by the Belgian courts. The doctor seemed to only be mentioned briefly in the article complained of; would a different article, along with a different set of circumstances, produce a different outcome?
Nonetheless, this case will surely catch the attention of those involved in any data protection or privacy law work around the world.
Central to this case is balancing the Right to be Forgotten against the rights of the press and public. As with any case, the facts matter, and it is important to note that at the time Le Soir digitized their archives, the doctors conviction was considered “spent.” This means that the conviction is essentially ignored after a certain rehabilitation period, the length of which is determined based on the nature of the offense.
This formal recognition by society of an individual’s rehabilitation supports arguments for anonymisation in any case that calls for balancing privacy rights and freedom of press and/or expression. If a particular criminal justice system seeks to remove the ill effects of an individual’s previous transgressions on his or her future, it makes sense, in a case like this, to tip the scales in favor of the RTBF. After all, the RTBF seeks to allow individuals to determine their future in an autonomous way, free of any stigmatization that may accompany detestable past acts. Removing the doctor’s name from the online article coincides with both the goal of “spent convictions” and the Right to Be Forgotten impeccably.
While it remains to be seen what, if any, effect this case will have on our legal system, it’s hard to deny that powerful arguments exist on both sides of the issue. Currently, no online RTBF laws exist in the United States, but that may change soon. Might decisions like this influence the United States to follow suit in some way, shape, or form? At least some organizations hope that is the case.
For the time being, though, we seem still to be left with more questions than answers.
For more information or questions, or if you are a victim of online defamation looking to remove content from the Internet, contact Aaron Minc, an attorney at the law firm of Meyers Roman Friedberg & Lewis, LPA at 216-373-7706 or firstname.lastname@example.org.