The “right to be forgotten," which exists in European Union member states and allows for mandatory delisting of results from search engines, must be balanced against the rights of the public to read media archives. EFF joined together with more than a dozen other media and free expression groups to make that point clear in a recent case from the European Court of Human Rights (ECtHR).
In Hurbain v. Belgium, the applicant, the editor-in-chief of Belgian daily newspaper Le Soir, argued that his right to freedom of expression was violated when he was ordered to delete an article about a deadly 1994 car accident from his newspaper’s website, or at least remove the name of the driver. The ECtHR’s Chamber, a judicial body that hears most of its cases, found there was no violation of freedom of expression, thus extending the “right to be forgotten” to media archives. The applicant requested a referral to ECtHR’s Grand Chamber, which only hears its most serious cases.
EFF and our partner organizations submitted an amicus brief before the Grand Chamber, asking for sharp limits on the “right to be forgotten.” Most European countries exempt the media from all or most of the obligations on data erasure. Any court rulings that interfere with a media archive should be “subject to the strictest scrutiny,” we argued.
We underlined that any further expansion of the “right to be forgotten” would create more uncertainty for the publishers and editors. It would put a significant burden on media outlets and online archives, which would face an unmanageable number of requests to have content removed, altered, or anonymized. If this decision stands, media outlets may try to avoid this risk simply by restricting or deleting their content in advance.
Instead, EFF and our partner organizations suggest that the Grand Chamber adopts a more balanced test when dealing with online media archives and the “right to be forgotten.” The guiding presumption in such cases should be that the integrity of online media archives must be preserved.
A few other factors must be considered. First, has a claimant suffered substantial damage or harm due to the content linked to their name? This should be “sufficiently specific” harm, and not “mere embarrassment or discomfort.” Second, has sufficient weight been given to the purpose of the media archive? The public interest in archived media reports may increase over time, when, for instance, the individual decides to run for office, or the information becomes central to academic, scientific, or historical research purposes. Third, the right to receive information remains an important factor and must be given weight. For example, we argued that information about a ten-year-old bankruptcy concerns the person who went bankrupt, but it also concerns the operations and fairness of the courts.
In short, this expansion of the right to be forgotten creates a potential “serious and negative” effect on access to information, and media freedom. EFF advocates for a limited scope and geographic reach of this right. In Hurbain, EFF and our partners called on the ECtHR’s Grand Chamber to adopt a nuanced approach to balance individual’s “right to be forgotten” with the integrity of online media archives, keeping in mind the highest standards for the protection of journalistic activities and media freedom.
You can read our full amicus brief here.