Belgium: Belgian Supreme Court Holds That Right To Be Forgotten Extends To Newspaper Archives

On 29 April 2016, the Belgian Supreme Court (Hof van Cassatie / Cour de Cassation) (the "Court") issued a judgment in a dispute between the publisher of the Belgian newspaper "Le Soir" (the "plaintiff"), and a reader of Le Soir who is also a physician ("Dr. O.G.").

Dr. O.G. had been involved in a car accident causing the death of two persons. This accident was reported in the November 1994 edition of Le Soir featuring a specific reference to Dr. O.G.'s name and surname. In June 2008, Le Soir established on its website a system of free access to all the articles which it had published since 1989. Through this system, the press article concerning Dr. O.G could be accessed freely by means of a simple query on the basis of his name launched not only from Le Soir's archives search engine but also from other search engines such as Google. Claiming that the online availability of this article with reference to his name was causing him harm, Dr. O.G. requested the newspaper to anonymise the article. Le Soir refused and Dr. O.G. brought an action against the plaintiff seeking the anonymisation of the article on the basis of Article 1382 of the Civil Code.

On 25 September 2014, the Court of Appeal of Liège held that the online archive of the article violated Dr. O.G.'s right to be forgotten. In particular, the Court of Appeal reasoned that the case turned on finding a balance between the plaintiff's right to freedom of expression and Dr. O.G.'s right to respect for his private life. The Court of Appeal held that the right to be forgotten (in both its traditional and digital form) is an intrinsic component of the right to respect for one's private life.

The Court of Appeal furthermore listed seven conditions for the right to be forgotten to apply: (i) an initial legitimate publication; (ii) the reported facts are of a judicial nature; (iii) there is no current reason for the new publication; (iv) the absence of historic interest; (v) the passing of time between both publications; (vi) the data subject does not have a public life; (vii) the data subject has paid its debt. Considering that these criteria applied to the case at hand, the Court of Appeal ordered the plaintiff to replace Dr. O.G.'s name and surname by the letter X in the article appearing on the website.

The Court, which only judges on issues of law, confirmed the Court of Appeal's judgment and rejected the position that the "right to be forgotten" would not have any legal basis. The Court also held that the plaintiff's refusal to heed the request for anonymisation could be considered a fault within the meaning of Article 1382 of the Civil Code.

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