By Patrick Van Eecke and Kaat Van Delm
Nearly two years after the European Court of Justice has issued its famous judgment on the right to be forgotten, in its Google Spain Case (read our blog from 14 May 2014 here), the Belgian Court of Cassation has for the first time decided itself on the matter (Cass. 29 April 2016, n° C.15.0052.F).
The Court decided that the right to privacy and right to be forgotten expressed by the claimant justify the limitation of the right to freedom of expression from Le Soir. Therefore, Le Soir needs to remove the name of the applicant from the article in its database.
Shortly after the Google Spain decision, the Court of Appeal from Liège had rendered in September 2014 a judgment favourable on the right to be forgotten, which was subsequently appealed to the Court of Cassation. The facts of the case concerned a car accident dating from 1994, in which two people died. The Belgian newspaper ‘Le Soir’ had published an article containing the full name of the driver. In 2008, Le Soir made part of its archives freely available online, also including the 1994 article. In 2010, the driver requested to remove the article or to anonymise it. Both the Court of Appeal from Liège and the Court of Cassation have expressed themselves favourably over the right to be forgotten.
1. With regard to the procedure, first, it was ruled that the question does not concern a ‘press offence’ as therefore a criminal offence needs to be committed, which is not the case. Therefore, the fact that the claim has not been communicated to the public prosecutor – which is mandatory for press offences -, does not result in annulment of the decision. Second, it was ruled that the ‘cascade of liability’ beneficial for the press- according to which only the next person in the cascade can be held liable if it is impossible to hold the former person in line liable – is not applicable as the problem at issue is not created by the redaction of the article, though originates from an editorial choice (online availability of the article). Therefore, Le Soir cannot escape liability by stating that the claimant should first have addressed herself to the owner of the website on which Le Soir’s database is published.
2. With regard to the content, it is confirmed that a balance must be struck between on the one hand, the right to privacy of the claimant, embedding the right to be forgotten, and on the other hand the right of freedom of expression of Le Soir. The liability of Le Soir needs to be assessed in 2010, when the claimant asked for anonymisation. The Court of Cassation refers directly to the Google Spain case, and, given the important lapse of time, given the fact that there is no actual interest in communicating the name of the claimant and given the fact that suppression of the name does not have an impact on the essence of the information, rules in favour of the right to be forgotten.
The Court came to the conclusion that the right to privacy and right to be forgotten expressed by the claimant justify the limitation of the right to freedom of expression from Le Soir. Le Soir needs to remove the name of the applicant from the article in its database.
Should you have any further questions regarding the above, please contact Patrick Van Eecke (firstname.lastname@example.org) or Kaat Van Delm (email@example.com)