The Right to be Forgotten: new impetus from the European Court of Human Rights


In a judgment involving a French-language newspaper based in Belgium, the European Court of Human Rights (ECtHR) has raised the possibility of the right to be forgotten being extended from internet searches to day-to-day online news publishing.

For many people, the European Court of Human Rights is a distant and less than relevant institution to their daily lives.  To misquote Neville Chamberlain’s speech to the nation prior to the outbreak of the Second World War, this is a Court in a far away country (at least metaphorically, as it’s located in Strasbourg) of which we know little.

Inevitably, it takes time for the full effect of ECtHR decisions to filter down to domestic law, and because it is unclear whether Belgian law is the same as UK law, it may be some time (if ever) before the effects of this decision are felt in this country.

As is well known, the current position is that internet search engines can be ordered to remove reports of historic crimes, and the names of those who were convicted, from their search results – the “right to be forgotten”.

But in a recent decision, the ECtHR dismissed a complaint by Le Soir newspaper concerning judgments from the Belgian Courts in respect of the right to be forgotten.

Essentially, the Belgian Courts had ordered the newspaper to anonymise the name of a driver responsible for a fatal car accident in 1994.  The original article identified the driver by name, and it is this piece of information which was ordered to be removed.

Apparently, Belgian law recognises a right to be forgotten as “integral” to a person’s right to respect for private and family life, and in this case, the local Courts held that the right to freedom of expression did not take precedence over it.

The ECtHR held that because the driver had served his sentence and had been rehabilitated back into society, allowing the article to remain online would create a “virtual criminal record” that would never be erased and could cause “indefinite and serious harm to the driver’s reputation”.

This is by no means the end of the story, because both the newspaper and the complainant may request the case to be sent to the ECtHR Grand Chamber for a final decision.

So does this decision have any immediate effect on working journalists and publishers?  The answer is a very strong ‘no’.

This is because, first, the Le Soir case still has quite a way to go; and second, every member of the European Convention for Human Rights has to balance the right to privacy and family life, and the right to freedom of expression.

Belgian law may have been held not to strike the balance correctly, but that does not mean that UK laws are similarly defective.  In other words, if a criminal tried to secure anonymity in respect of an historic conviction on the ground that it is no longer relevant, and a Court in England and Wales, Scotland, or Northern Ireland, refused the application, the ECtHR might just as easily accept the decision of the local Courts across the UK.

However, the fact remains the ECtHR has decided to extend the right to be forgotten based on the facts of the Le Soir case.  It is not beyond the bounds of possibility that a UK publisher might receive a request to amend an archived article by removing a person’s name or other identifiers.  Such a request would have to be considered very carefully.

But to end with some good news: the ECtHR made it absolutely clear that there is no obligation for publishers to monitor archived stories.  To that extent, therefore, it’s business as usual.

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