In a recently published decision, the Belgian Court of Cassation confirmed the broad interpretation given to the “right to be forgotten” by a Belgian Court of Appeal (i.e., Cour d’Appel de Liège, 2013/RG/393, September 25, 2014).
The judgment was rendered in a case initiated by an individual against a Belgian newspaper for not complying with a request to remove from its online archives an article from 1994 regarding a car accident causing the death of two persons in which the individual was involved.
In the contested judgment, the Court of Appeal decided that providing the name of the claimant in the article was not in the public interest and that instead, it was seriously damaging the reputation of the concerned individual. Therefore, it ordered the newspaper to anonymize the online version of the article. In the motivation of its decision, the Court of Appeal referred to the “right to be forgotten” developed by the Court of Justice of the European Union (the “CJEU”) in Google Spain S.L. and Google Inc. v Agencia Española de Protección de Datos and Mario Costeja González (Case C-131/12). The newspaper contested the Court of Appeal’s judgment and brought the case before the Belgian Court of Cassation.
In its decision, the Court of Cassation confirmed that the publication of articles in newspapers’ online archives could be considered as a new disclosure of facts of an individual’s judicial past, which could potentially infringe the individual’s right to be forgotten.
Striking a balance between the right to privacy and the freedom of expression, the Court of Cassation confirmed that the online publication of the non-anonymized article years after the accident had occurred was likely to cause damages to the individual, which are disproportionate to the interests related to the strict application of the newspaper’s freedom of expression. Therefore, the Court of Cassation held that in the present case, the right to privacy of the concerned individual could justify an interference with the newspaper’s right to freedom of expression. Hence, the Court of Cassation confirmed that the newspaper must remove all references to the individual from the article in its online archives.
Read the Belgian Court of Cassation’s decision (in French).