On 29 April 2016, the Court of Cassation dismissed an appeal lodged by the Belgian newspaper Le Soir against the ruling of the Court of Appeal of Liège of 25 September 2014. The Court of Appeal found that the right to privacy of an individual could justify the removal of any references made to him from the online archives of the newspaper concerned.
The case is about an individual who was driving under the influence of alcohol and was involved in a fatal car accident in 1994. At that time, his name was mentioned in an article published in Le Soir. The court convicted him of manslaughter in 2000 in this accident. Once he served his criminal sentence, he was rehabilitated in 2006. In 2008, Le Soir started to offer free online access to all its articles published since 1989. These articles were also made available through external search engines. The individual concerned then requested the newspaper to remove or alter the article at stake so that the personal data relating to him no longer appeared in archived articles of Le Soir which were results of online searches. But Le Soir did not adhere to his request, so he sued the newspaper.
The Court of Appeal confirmed the judgment rendered one year before by the Court of First Instance of Neufchâteau that ordered the newspaper to anonymize the online version of that article and awarded the claimant 1 euro as lump sum compensation for the moral damage he suffered. The Court was indeed of the opinion that freedom of expression is not absolute and can be limited when it conflicts with the right to privacy enshrined in articles 8 of the European Convention on Human Rights, 22 of the Constitution, and 17 of the International Covenant on Civil and Political Rights.
Contrary to the newspaper’s opinion, the Court believes that such right to privacy actually encompasses the “right to be forgotten”, including the right for an individual to request the removal of online data relating to him/her after a certain period of time. In this regard, the Court expressly referred to the famous decision of the European Court of Justice of 13 May 2014 in the Google/ Costeja González (C-131/12) case. Furthermore, the Court held that the online publication in 2008 and thereafter of the non-anonymized news article of 1994, which was years after the accident had occurred, constitutes a new disclosure of the judicial past of the claimant that would give rise to damage that would be disproportionate to the advantages relating to the strict application of the freedom of expression of the newspaper. Therefore, the Court held that the Le Soir acted wrongfully by dismissing, in the present circumstances and without reasonable cause, the individual’s request for anonymization.
The case can be found on http://www.cass.be