DISSENTING OPINION OF JUDGE PAVLI

1. The current case involves a conflict between the right of the press and the general public to preserve the integrity of press archives versus the right of an individual not to be confronted with a permanent “criminal record” in the online domain, which is one aspect of what has come to be known as “the right to be forgotten”. On the facts, it is a situation whereby one person’s right to online privacy can be quite effectively protected, at the level of search engines, without it being necessary to interfere directly with the relevant archived material – a situation that by definition raises serious questions of necessity in a democratic society. It is a crucial consideration that has been ignored by the domestic rulings, which the majority upholds based on a weak procedural argument and with little attention to the general ramifications of this potentially far-reaching judgment.

2. In my view, by ordering the applicant to anonymise an archived online article containing information about an old crime committed by the plaintiff in the domestic proceedings (Mr G.), the Belgian courts failed to strike a fair balance between the competing interests protected by Article 10 and Article 8 of the Convention respectively. In ratifying the balancing exercise carried out by the national courts, the judgment goes against an emerging but clear European consensus that right-to-be-forgotten claims in the online realm can, and should, be effectively addressed through deindexation of search engine results, while preserving the integrity of the original historical material – unless the privacy claimant can show that, for some exceptional reason, deindexation would not be sufficient or adequate in the specific case. Finally, the methodological approach followed by the majority in applying the Von Hannover criteria to the current case is also questionable in my view.

3. I recall at the outset that the Court has repeatedly emphasised the substantial contribution made by digital press archives to preserving and making available news and information, thereby constituting an important source for education and historical research (see Węgrzynowski and Smolczewski v. Poland , no. 33846/07, § 59, 16 July 2013, and Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2) , nos. 3002/03 and 23676/03, § 45, ECHR 2009). The maintenance of Internet archives is a critical aspect of the role of the press in a democracy (ibid.).

4. The Court has further noted that, even with respect to defamatory material, “it is not the role of judicial authorities to engage in rewriting history by ordering the removal from the public domain of all traces of publications which have in the past been found, by final judicial decisions, to amount to unjustified attacks on individual reputations” (see Węgrzynowski and Smolczewski , cited above, § 65). It follows a fortiori that only very compelling reasons can justify direct interference with archived media content whose legality at the time of the original publication has not been questioned.

5. Retrospective cleansing of digital press archives interferes not only with the public’s Article 10 right to be informed about past events and contemporary history, but also with the publisher’s freedom of journalistic expression protected by the same provision. In this context, the Court has recognised that granting such anonymisation requests can have a broader chilling effect on freedom of expression. According to the Court, “[t]he obligation to examine the lawfulness of a report at a later stage, following an anonymisation request from the person concerned, which implies ... weighing up all the interests at stake, would entail a risk that the press might refrain from keeping reports in its online archives or that it would omit individualised elements in reports likely to be the subject of such a request” (see M.L. and W.W. v. Germany , nos. 60798/10 and 65599/10, § 104, 28 June 2018). The Court observed in that regard that “the most careful scrutiny under Article 10 is required where measures or sanctions imposed on the press are capable of discouraging the participation of the press in debates on matters of legitimate public concern” (ibid.).

6. To fulfil their Article 10 function, digital press archives must be complete and historically accurate. Any tampering with their content could undermine their underlying purpose, which is to maintain a full historical record, keeping in mind also that it is not possible to know beforehand which particular information stored in them will, at some future point, become of renewed public interest. For example, journalists and others have a legitimate interest in building a moral profile of a political candidate by gathering or cross-checking various facts about his or her past. In such a situation, the person’s criminal record may gain new significance, whether or not any prior convictions are considered to be “spent” (see Jankauskas v. Lithuania (no. 2) , no. 50446/09, 27 June 2017, where the Court found that spent convictions can legitimately be relied on for the purposes of evaluating a person’s moral stature). In the case of emergent public figures, the watchdog function can be seriously compromised if press archives have in the meantime been unnecessarily sanitised.

7. In view of the above, there is little scope under the Convention for measures that have the effect of permanently interfering with the historical record. I should note at this point that it makes little difference that the historical material has been left untouched in the printed version of the archive, considering that present-day newsgathering, investigative journalism and scholarly research rely to a great degree on online sources. In fact, the Court has stressed that the importance of digital press archives stems particularly from the fact that they are readily accessible to the public and are generally free (see M.L. and W.W. v. Germany , cited above, § 90). While a person’s privacy and right to rehabilitation should be generally protected from the casual curiosity of the online masses, that does not necessarily justify the complete erasure of the historical record.

8. It is important to consider the case at hand in the context of the emerging European consensus on balancing private and public interests in cases involving press archives. An important reference in this regard is the CJEU’s ruling in Google Spain , to which today’s judgment refers extensively (see paragraphs 42-45 of the judgment) [1] . At issue in Google Spain was an archived online article, fully lawful at the time of publication, containing a person’s name in connection with an auction that followed attachment proceedings. The CJEU established a data protection remedy that consists in delisting web pages containing personal data from name-based search engine results, but ensuring that no information gets deleted or altered in the original source [2] . The CJEU’s reasoning rested in part on the distinction between the legal regime applicable to general search engines and that applicable to primary publishers, with the crucial difference being that only the latter can benefit from journalistic exemptions under European Union data protection principles. The CJEU pointed out that as a result of this difference the data subject will, in certain circumstances, be capable of exercising his data protection rights against the search engine operator, but not against the publisher of the web page (see paragraph 85 of the CJEU judgment). In the same vein, the outcome of the weighing of the competing interests at issue may be different in each of the two scenarios, “given that, first, the legitimate interests justifying the processing may be different and, second, the consequences of the processing for the data subject , and in particular for his private life, are not necessarily the same” (paragraph 86).

9. Regarding specifically the consequences of data processing for private life, the CJEU found that the inclusion of a web page in name-based search results “is liable to constitute a more significant interference with the data subject’s fundamental right to privacy than the publication on the web page”, given that the inclusion of information in the search results “makes access to that information appreciably easier for any internet user making a search in respect of the person concerned and may play a decisive role in the dissemination of that information” (paragraph 87).

10. In this connection, it is important to bear in mind that general search engines have a transformational impact on personal privacy because they allow users to build a “complete profile” of a person’s life, drawing on practically every piece of information available online, in a way that was not possible in the pre-Internet days. This makes general search engines unique in a way that does not apply to digital press archives or even the search engine of one individual website.

11. In continuity with previous EU data protection rules and the Google Spain judgment, the upgraded EU General Data Protection Regulation (GDPR) expressly lays down the right to erasure of personal data on grounds enumerated in Article 17(1); this right is, however, subject to limitation to the extent that processing is necessary for exercising the right of freedom of expression and information (Article 17(3)(a)). The GDPR also provides for exemptions and derogations for processing carried out for journalistic purposes if they are necessary to reconcile the right to the protection of personal data with the freedom of expression and information (Article 85(2)). Recital 153 of the GDPR makes it clear that this applies “in particular to the processing of personal data ... in news archives and press libraries”.

12. In the years since the Google Spain judgment, delisting of name-based search results has become a well-established and functional remedy in Europe in cases concerning right-to-be-forgotten claims relating to press publications [3] . There is in fact strong comparative evidence pointing towards a reluctance on the part of domestic courts to edit the past by anonymising archives, with remedies at the level of search engines being favoured instead.

13. By way of example, I refer to a recent judgment of the Spanish Constitutional Court in A & B v. Ediciones El País , which dealt with facts not dissimilar to those at issue in the current case [4] . The Constitutional Court held that once access to the online article in question had been impeded through its deindexation from general search engines and from the internal search engine of El País , it was no longer necessary to alter its content to satisfy the privacy claim, since the dissemination of the article had been reduced both quantitatively and qualitatively by disassociating it from the identity of the persons concerned.

14. Also notable is a judgment of the German Federal Constitutional Court of November 2019 which introduced a nuanced methodology for balancing private and public interests in cases concerning digital press archives, with an emphasis on examining all available technical options before resorting to altering the historical record directly [5] . While leaving the balancing exercise in casu to the ordinary courts, the high German court stressed that “[t]he aim is to strike a balance that preserves unrestricted access to the original texts to the greatest extent possible, while also ensuring that where protection is merited in the individual case – especially in relation to name-based searches via search engines – sufficient limitations are put in place” (paragraph 141). In its methodological guidance to the lower courts, the Federal Constitutional Court focused on the actual dissemination and visibility of the original publication on the Internet (see paragraphs 125, 131-32 and 137), an aspect that is also crucial in the present case.

15. Turning now to our own methodology for considering right ‑ to ‑ be ‑ forgotten requests, the majority have resorted to the criteria developed in Von Hannover v. Germany (no. 2) ([GC], nos. 40660/08 and 60641/08, ECHR 2012) as the general matrix for resolving conflicts between Article 8 and Article 10 interests. In fairness, the Court has previously followed the same approach, in M.L. and W.W. v. Germany (cited above).

16. The deployment of the Von Hannover criteria, together with the similar but not identical test adopted in Axel Springer AG v. Germany ([GC], no. 39954/08, 7 February 2012), in order to resolve all conflicts ranging from invasion of privacy to defamation disputes and now matters of informational self-determination has generated a measure of criticism from both outside [6] and inside [7] the Court. It has been argued, for example, that defamation cases differ in many significant respects from privacy torts, and that at least some of the criteria developed in Von Hannover are not equally relevant or transposable to the reputational context. I have some sympathy for this line of argument, considering that it may be somewhat rigid and overambitious to seek to apply a single set of criteria to the very diverse range of conflicts that may arise between Article 8 and 10 interests. This is especially so in view of the growing scope and diversity of claims that the Court has recognised as falling with the remit of Article 8.

17. Be that as it may, the current context raises an even more challenging question: why should the Von Hannover criteria be applied by default to a dispute about a publication whose original legality is not in question and whose court-ordered editing is requested in the name of substantially different considerations? For example, the notoriety of the person concerned or the contribution of the material to matters of public interest are much more easily assessable at the moment of the original publication; in contrast, when interference with the archived material is requested many years after the events, it is also necessary to consider the potential utility and relevance of the publication at some future time. This is an inherently uncertain ponderation and therefore the presumption must be in favour of not interfering directly with original archive material. For these reasons, I fear that the Von Hannover criteria may have reached the limit of their usefulness in this context. It is worth recalling here that the EU regulatory framework on the right to be forgotten relies on a simpler set of criteria that are more germane to the context of personal data protection [8] (though certainly not without their own interpretative challenges).

18. Turning to the merits of the present case, I do not question that the plaintiff in the domestic proceedings had a legitimate Article 8 interest in not being casually confronted with his spent conviction, with a view to his reintegration in society. It is, however, important to pinpoint where exactly that interest lay. He took the initial steps against Le Soir because he realised that the article at issue appeared among the top search results when his name was typed into search engines (see paragraph 7 of the judgment). In his submissions to this Court, Mr G. sought to demonstrate the impact of the archived article on his private life precisely by reference to the fact that the article featured prominently in the search results linked to his name on a major search engine and on the internal search engine of Le Soir (see paragraph 8 of the third-party submissions). It is also notable, even though not decisive, that Mr G. was prepared to accept, as an alternative remedy, the delisting of the article from search engine results for queries containing his name, should anonymisation of the article prove technically impossible (see paragraph 11 of the judgment).

19. It is clear from the above that the plaintiff’s root concern was with the online search results, not the article itself. With this in mind, his legitimate interest in not being confronted with the article in question in his daily personal and professional life could have been adequately protected by removing the article from name-based search results on general search engines (according to current statistics, more than 90 percent of Belgian Internet users tend to use one of two major search engines). Such a measure would have prevented the article from becoming easily accessible through curiosity-driven or other random search queries. At the same time, it would have preserved the integrity of the press archives and allowed full access to the unaltered original source to those persons – journalists, researchers or others – who might become specifically interested in the past events covered in the article. While delisting remains a significant interference with the freedom to receive and impart information and ideas, it is still less onerous for the applicant and less detrimental to his Article 10 rights.

20. It cannot be excluded that in certain circumstances a privacy interest may be so strong as to warrant the anonymisation of an archived news article. Where a person makes a compelling case that the harm caused to him or her as a result of an online publication cannot be undone by delisting, other remedies may need to be considered. Put differently, for anonymisation to be compatible with Article 10, a person must show that substantial harm to his or her private life does not result merely from a piece of information being easily discoverable, but rather from the fact that the information continues to exist in the online space at all (for example, when it involves particularly sensitive personal data or especially vulnerable persons). However, no such special circumstances are present in the instant case.

21. How do the majority deal with this conundrum? They find that since the plaintiff had not requested deindexation from the search engine and had in fact chosen to go after the newspaper archive, it was not for the national courts, or for this Court, to consider possible alternatives “in the abstract” (see paragraph 127 of the judgment). In other words, because the plaintiff has demanded that the neighbour’s wall be taken down in order to get rid of some graffiti on it, let the plaintiff have his wish – alternatives and proportionality be damned! I am not persuaded that the Belgian courts seriously considered any (readily available) alternatives to direct interference with the archived material in this case. The majority have therefore upheld domestic decisions that failed to engage in the kind of careful balancing that other national and supranational courts across the continent have sought to develop in this delicate context [9] . While one ought to have sympathy for the predicament of the plaintiff in the domestic proceedings, we cannot ignore the broader consequences of the precedent we are creating.

22. In conclusion, today’s judgment stands in strong tension with the principles of our own jurisprudence on the integrity of press archives as well as the emerging European consensus on the application of the right to be forgotten. In adopting this judgment the Court may have opened the door, with no good reason in my view, to the facile cleansing of the journalistic record.

[1] Case C-131/12, EU:C:2014:317; Google Spain SL and Google Inc. It is notable that the Liège Court of Appeal took note of Google Spain in its decision in the case at hand and was therefore aware of the newly established remedy (see paragraph 15 of the judgment).

[2] See “Article 29” Data Protection Working Party, Guidelines on the implementation of the Court of Justice of the European Union judgment in the case of “ Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González” (C-131/12), adopted on 26 November 2014, § 4.

[3] See, for instance, the recent judgment of the High Court of England and Wales in NT1 and NT2 v Google and The Information Commissioner [2018] EWHC 799 (QB); and the judgment of the French Court of Cassation, First Civil Division, 12 May 2016, no. 15 ‑ 17729.

[4] Judgment 58/2018, 4 June 2018.

[5] 1 BvR 16/13, 6 November 2019.

[6] See, among others, H. Tomlinson, “Privacy and Defamation, Strasbourg blurs the boundaries”, 23 January 2014, at Inforrm.org; and S. E. Gale, “Defamation and the misuse of private information: a comparative analysis” (2018), Tort Law Review 26, at 38-54.

[7] See, although in a more specific context, the joint dissenting opinion of Judges Sajó and Karakaş in Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, 27 June 2017.

[8] See paragraph 11 above.

[9] I am also unable to follow the majority’s suggestion that the applicant entity should have requested deindexation from the search engines, while the rightsholder was not prepared to do so himself. This would be against the principles of data protection and it is not surprising that the search engine failed to act on a third party’s request.