Belgium, Court of Cassation, 29 April 2016 C.15.0052.F

Identification of the case

• Article 22 of the Belgian Constitution
• Art. 764 para. 1 nr. 4 of Code Judiciaire

Summary of the case

A Belgian newspaper had an online archive of its previous articles, available for free consultation. One of these articles regarded the plaintiff’s criminal conviction, which dated back several years and ended with rehabilitation. The plaintiff sued the newspaper editor in chief to court asking for the erasure or anonymization of his data and damages, in light of the ‘right to be forgotten’. The respondent was convicted by the Court of Appeal of Liège to anonymise the plaintiff’s data and to pay symbolic damages. The editor in chief appealed the Court of Cassation claiming, among other reasons, that the ‘digital’ right to be forgotten, as part of the right to respect for private and family life, in this case could not prevail over freedom of expression.

• Civil judicial enforcement

Annulment of Appeal decision.

After having rejected some procedural issues, the Court examines P.H. (editor)’s pleas regarding the balance between the right to be forgotten, as part of the right to respect for private life (art. 8 ECHR and art. 22 of the Belgian Constitution), and the freedom of expression (art. 10 ECHR and art. 19 of the Constitution). According to the Court, both rights are not absolute and cannot be hierarchically ordered. The right to be forgotten is, in fact, a legitimate restriction to the freedom of expression based on art. 8 ECHR and must therefore be subject to the requirements prescribed by art. 10 para. 2 ECHR (exceptions must be prescribed by law, pursue a legitimate interest and not exceed proportionality). In P.H.’s view, the right to be forgotten, intended as right to erasure of digital data on the internet, was not prescribed by law, as it was only asserted by scholars and case law (CJEU’s Google Spain case). On the contrary, the Court assumed that the right to be ‘digitally’ forgotten was an intrinsic component of the right to private life (art. 8 ECHR) and therefore the limitation to the freedom of expression (art. 10 para. 2 ECHR) was actually prescribed by law: art. 8 ECHR, art. 17 ICCPR and art. 22 of the Belgian Constitution. Google Spain case should be seen as an added argument to define the scope of the right. Furthermore, the Court had to balance the freedom of expression (art. 10 ECHR, 19 ICCPR), as the right to keep online archives of newspaper articles and the right of the public to read them, and the right to be forgotten as part of the one to respect for private life (art. 8 ECHR, 17 ICCPR, 22 Const.), allowing a previously convicted person to oppose the new divulgation of the facts regarding its crime. As a matter of fact, the online archiving of the articles in question was equivalent to a new and widespread divulgation of the facts, because of their online availability for free and the exponential effect of their circulation in search engine providers such as Google. The Court finally convicted the editor on two grounds. First of all, there requirements to make the right to be forgotten operate are present, because the online availability of the articles in a non anonymised version, after so many years, constituted a disproportionate infringement on the person’s right to private life, compared to the modest advantage gained on the side of the freedom of expression. In the second place, the restriction to the freedom of expression is legitimate, as all the requirements of art. 10 para. 2 ECHR are met. Therefore, the Courts convicts the editor to the anonymisation of the articles and to pay symbolic damages.

Role of the Charter and role of the general principles on enforcement

• Right to a fair trial

Despite the lack of any references to neither CFREU nor ECHR, right to a fair trial was referred to by the plaintiff, who claimed its violation because Google Spain decision was issued by the CJEU after terms expiration for the submission of his final conclusions to the Court of Appeal in response to the ones of the Advocate General. The Court of Cassation denied the existence of any violation, as the applicant had the chance to respond on the issues raised in the Google Spain case in court, as he actually did.

• Proportionality

The principle of proportionality is applied by the Court to prove the legitimacy of the restriction to the freedom of expression, pursuant art. 10 para. 2 ECHR.

Elements of judicial dialogue

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)

• CJEU C-131/12, Google Spain

Conform interpretation with EU law as interpreted by the CJEU.

To solve a conflict between two different fundamental rights.

Giving legal basis to the right to be forgotten.