Liège Court of Appeal, ruling dated 25.09.14, 2013/GR/393
Belgium Protection of individuals with regard to processing of personal data – Respect for privacy and family life – Freedom of expression – Balancing these two fundamental rights – Posting of archives of a daily online – Right to be forgotten of a person having been the subject of a news article – Non-contractual liability of the daily editor*
In its ruling dated 25 September 2014, the Liège Court of Appeal was called upon to settle a dispute between a doctor who caused, when drunk, a serious road accident in 1994, and a daily that had implemented since 2008, free access on its website to all of its articles published since 1989, including the electronic version of an article from the time of the accident caused by the doctor and stating the facts of that accident, for which the doctor had been convicted in criminal proceedings. The name of the doctor, who was the subject of a rehabilitation decision in 2006, was explicitly mentioned therein.
Considering himself disadvantaged by this online post, which allowed, by way of a request initiated using his first and last names, not only through the search engine available on the newspaper’s website, but also through other search engines such as Google, dissemination of the article concerning him, the doctor requested the anonymisation of that article. Since he did not receive any positive response to his request, the doctor brought an action before the civil courts, based on an alleged tort liability of the editor of the daily under Article 1382 of the Civil Code.
After having reiterated that the parties to the proceedings were each entitled to fundamental rights of equal value, i.e., freedom of expression for the daily, and the right to respect for private and family life for the doctor, the appeal court emphasised that the right to digital oblivion was established by the Court of Justice in its Google Spain ruling. In light of these observations, the Appeal Court, by balancing the different protected interests, ruled that, by refusing, in the specific context of the case and without reasonable cause, to accept the doctor’s request for anonymisation, although this request was part of a legitimate claim of right to be forgotten, and did not constitute a disproportionate interference in the freedom of expression of the press, the editor was at fault within the meaning of Article 1382 of the Civil Code and caused prejudice to the doctor. The editor was therefore ordered to ensure the anonymisation of the electronic version of the article in question, and to pay a symbolic euro to the doctor, as nonpecuniary damage.
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