When does the right to oblivion outweigh freedom of the press?

In a December 19, 2024 judgment, the Ghent Court of Appeals ruled on the balance between the right to oblivion on the one hand and freedom of the press on the other. This case touches on fundamental questions that are increasingly relevant in the digital age: how long may information about a person remain available online, and under what conditions can a person demand that this information be removed or modified?

The facts and procedural history

The case revolves around T.M., an entrepreneur who in September 2013 founded the "Natan School" - an educational institution aimed at teaching children entrepreneurial skills from an early age. The school bore the name of the Belgian fashion house Natan, whose owner Edouard Vermeulen had accepted sponsorship of the school along with a well-known economist (G.N.).

Only a few months after its opening, in December 2013, an inspection was ordered by the then Minister of Education. Despite a name change to "Tom College" (which stood for "Traditionally Enterprising and Musical"), the Flemish Government revoked the school's recognition in July 2014 after a negative report from the education inspection.

During this period, DPG Media published several articles about the school in Het Laatste Nieuws (March 4, April 4 and July 22, 2014) and one article in De Morgen (December 30, 2013). These articles described the school's problematic start and eventual closure. It is important to note that T.M. did not respond to the content of these publications at the time and did not dispute their accuracy.

Seven years later, on Sept. 17, 2021, T.M.'s attorney sent a formal notice to DPG Media requesting that the articles be removed from the online archive or at least anonymized. T.M. argued that the articles caused him "significant harm" both professionally and personally. DPG Media refused to accede to this request.

In the meantime, T.M. had founded a new organization with his wife in 2017: VZW Huis van Ben, a cohousing project for young people with autism. Following complaints from parents and intervention by the Turnhout OCMW, a judicial investigation was launched in 2020. The VZW was declared bankrupt in November 2020, and in February 2024 T.M. was sentenced by the correctional court of Turnhout to 40 months' imprisonment (half of which was suspended), a fine of 12,000 euros and a professional ban of 10 years for, among other things, abuse of vulnerable persons, fraud and abuse of trust.

The legal framework: a clash of fundamental rights

The Court of Appeals was faced with the task of balancing various fundamental rights:

1. The right to data erasure (Article 17 AVG): Also known as the "right to oblivion," this gives data subjects the right to have their personal data deleted when it is no longer needed for the purposes for which it was collected. However, the Court stressed that this right is not absolute. Article 17(3) AVG explicitly states that this right does not apply insofar as processing is necessary "for the exercise of the right to freedom of expression and information."
2. The right to freedom of expression and information (Article 10 ECHR and Article 19 GW): This protects freedom of the press as an essential component of a democratic society. The Court referred to established case law of the European Court of Human Rights (ECHR) confirming that the right to information is not limited to current events. The Court cited, among others, the ECHR case Węgrzynowski and Smolczewski t. Poland, which stated that "it is not the job of the judiciary to engage in rewriting history."
3. The right to privacy (Article 8 ECHR): This protects the private lives of individuals against unwarranted interference. The Court had to assess whether the restriction of this right was proportionate in the interest of press freedom.
4. The right to image (Article XI.174 WER): In principle, this requires the consent of the person portrayed for publication of his or her image. However, the Court noted that this consent is not subject to formal requirements and can therefore also be implied. Moreover, different standards apply to "public figures."
5. The Code of the Press Council: Although not binding, the Court also referred to the guidelines to Articles 22 and 23 of this code, which state that "the social interest in archives being as complete as possible" and "the right to information" in principle outweigh the interest that individuals may have in deleting or modifying archived articles.

These rights should be read not only side by side, but also in conjunction with Recital 153 of the AVG, which emphasizes that "the rules on freedom of expression and information, including journalistic, academic, artistic and/or literary forms of expression must be reconciled with the right to protection of personal data.“

The Court's thorough balancing of interests

The Court developed a detailed analysis to determine whether the requested restriction on press freedom (removal or anonymization of articles) met a "imperative social necessity". For this balancing exercise, the Court used a set of criteria drawn from the case law of the ECHR (in particular, the case of Von Hannover t. Germany):

1. Contribution to a debate of public interest The Court emphasized that the articles about the Natan School did serve a public interest. This was an educational project that used public funds and actively sought media attention. The Court stated: "Furthermore, the way the Natan School was organized does have social relevance. It was a project in the sector of education, a very relevant sector. Many questions were raised about the school and its policies." Crucial was the consideration that the articles, although dating from 2014, remained relevant even years later: "Partly in light of these 'new facts' (which admittedly are still subject to the presumption of innocence at present, given the appeal filed against the conviction), the articles targeted in these proceedings by T.M. are still socially relevant."
2. Status as a public figure The Court defined a public figure as "a person who holds public office or uses public funds, and more generally anyone who plays a role in public life, whether in politics, economics, the arts, media, sports, or any other field.". The Court concluded that T.M. was indeed a public figure, given his numerous initiatives and functions. The documents showed that he had been, among other things, president of the European Foundation for the Rights of the Child, the Youth Parliament, Children's Ambassador in Moerzeke and founder of several children's councils. The Court even quoted a 2005 statement by a 12-year-old Conner Rousseau, who stated that T.M.'s main intention was "to get on TV himself as often as possible." The Court therefore ruled: "T.M. should not now suddenly start claiming his anonymity because the project, about which he himself sought media attention, proved unsuccessful. This would lead to incomplete archives."
3. Content, form and impact of the publication The court attached great importance to the fact that T.M. had never disputed the content of the articles at the time of publication: "That T.M. tacitly gave his consent with the publication of his photograph is evidenced by the (press) attention he actively attracted, the deliberate pose he assumes in the photographs as well as the total lack of protest upon publication, shortly thereafter AND even in the first instance." The court further stated that there was no evidence that the reporting was not truthful. The articles were consistent with coverage in other media on the same issue.
4. Information obtained and veracity The court also assessed how DPG Media had obtained its information and its reliability. The fact that the school's "peters" (Edouard Vermeulen and G.N.) quickly distanced themselves from the project was seen as an indication that the articles were truthful.
5. Proportionality and least intrusive measures A key element in the assessment was whether less drastic measures were possible. The Court considered: "Indeed, as NV DPG Media correctly argues, the least intrusive measure would be to ask search engine operators (including Google) to remove links to the articles." This refers to the well-known "Google Spain" ruling by EU Court of Justice. The court noted that T.M.'s name did not appear prominently in Google's first search results, as more recent posts about his conviction ranked higher in the results.

The ruling and specific considerations

After this thorough consideration, the Court of Appeals affirmed the first instance judgment and rejected the claim for removal or anonymization of the articles. The Court held that freedom of the press and the importance of complete online archives outweighed T.M.'s right to oblivion in this case.

The Court formulated some particularly relevant considerations:

1. On truthfulness and non-controversy: "The fact that the content of the censured articles was never disputed at the time of their publication makes it in itself that the archive cannot be simply touched." This consideration underscores the importance of timely action against potentially unlawful publications.
2. On the deterrent effect on the press: The Court referred to ECHR case law in the case Hurbain t. Belgium: "In this regard, the Court is well aware of the risk of a deterrent effect on freedom of the press if one requires the publisher to anonymize an article whose legality was not disputed." The Court stressed that such an obligation could lead to the press becoming more reluctant to keep messages in online archives.
3. On the right to image: The Court also rejected the new claim about the right to image, with an interesting nuance about tacit consent: "However, the consent is not subject to conditions of form, so it can also be given tacitly." The court inferred this tacit consent from the media coverage that T.M. himself actively sought, the pose in the photos and the lack of protest.
4. On the practice of other media: The Court acknowledged that other media (Media House and RTV) did respond in part to T.M.'s request for anonymization, but noted that Media House did so with the caveat to re-state the name in the event of new facts or convictions. The Court concluded that this did not prejudice its own consideration.

Broader implications and practical lessons

This ruling has implications for various stakeholders in the tension between privacy and press freedom:

For media companies and journalists

1. Protection of archives: The ruling confirms that online archives are an essential part of press freedom and the right to information. Media companies can refer to this when faced with deletion or anonymization requests.
2. Clear criteria for consideration: The ruling provides a clear assessment framework for requests for removal or anonymization. Media companies can use these criteria (social interest, status as a public figure, truthfulness, proportionality) in their own decision-making.
3. Differentiated approach possible: The ruling does not rule out the possibility of a differentiated approach in some cases. DPG Media categorically refused to remove or anonymize articles, but other media (such as Media House) chose a more nuanced position, with conditional anonymization.
4. Importance of accurate reporting: The ruling underscores the importance of truthfulness and careful acknowledgement of sources. The responsibility of journalists to exercise care remains undiminished.

For individuals

1. Timely action is crucial: Those who object to publication should respond in a timely manner. Failure to object to articles at the time of publication significantly weakens subsequent requests for removal or anonymization.
2. Manage media exposure consciously: The ruling illustrates the risks of actively seeking the media. Those who seek public attention should be aware of the potential long-term effect of doing so and the fact that it is more difficult to claim anonymity later.
3. Alternatives to complete removal: The ruling points to alternative, less intrusive measures such as requesting search engines to remove links to specific articles (the "Google Spain" route). This can be an effective strategy to limit the online discoverability of certain information without compromising the integrity of archives.
4. Status as a public figure: The ruling uses a broad definition of "public figure." Not only politicians or well-known personalities, but anyone who "plays a role in public life" can be included. This has important implications for the privacy protection that can be claimed.

Conclusion

This ruling by the Ghent Court of Appeal strengthens the position of media companies and emphasizes the importance of freedom of the press and complete archives with integrity. It confirms that the right to oblivion is not an absolute right, but must be balanced against other fundamental rights, taking into account the specific circumstances of each case.

The ruling is part of a broader European case law that recognizes the importance of online archives, but at the same time leaves room for nuance and proportionality. With increasing digitization and the long-term availability of online information, trade-offs between press freedom and privacy will only grow in importance.

For future cases in this area, much will depend on factors such as the social relevance of the information, the status of the person involved, the veracity of the reporting, and the proportionality of the measures requested. This ruling provides a valuable precedent guiding such considerations.