CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 4 juillet 2023

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BELGIUM (Application no. 57292/16)   JUDGMENT Art 10 • Freedom of expression • Newspaper publisher ordered to anonymise online archived version of lawful article published twenty years earlier, on grounds of “right to be forgotten” of driver who caused a fatal accident • Need to preserve integrity of press archives • Clarification of scope of “right to be forgotten online”, a non-autonomous right linked to the right for respect for reputation • Establishment of criteria and rules for balancing the various rights at stake • Account taken by national courts of the nature and seriousness of the judicial facts reported on in the article, the lack of topical, historical and scientific interest and the fact that the person concerned was not well known • Continued online availability of article without restrictions apt to create “virtual criminal record” in view of the rehabilitation of the person concerned and the considerable time elapsing since publication of the original article • Anonymisation did not impose excessive and impracticable burden on publisher, while constituting the most effective means of protecting the privacy of the person concerned • Balancing of competing interests by the domestic courts in accordance with the Convention requirements • Interference proportionate and limited to what was strictly necessary   STRASBOURG 4 July 2023   This judgment is final but it may be subject to editorial revision. TABLE OF CONTENTS INTRODUCTION PROCEDURE THE FACTS I.   THE BACKGROUND TO THE CASE II.   THE DOMESTIC COURT PROCEEDINGS III.   IMPLEMENTATION OF THE JUDGMENT OF 25 SEPTEMBER 2014 RELEVANT LEGAL FRAMEWORK AND PRACTICE I.   DOMESTIC LAW AND PRACTICE A.   The Constitution B.   The Civil Code C.   The Act of 8 December 1992 on the protection of private life with regard to the processing of personal data D.   The Code of Criminal Procedure E.   The Judicial Code F.   The domestic courts’ case-law concerning the “right to be forgotten” II.   UNITED NATIONS INSTRUMENT III.   COUNCIL OF EUROPE INSTRUMENTS A.   Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data B.   Recommendation No. R (2000) 13 of the Committee of Ministers C.   Recommendation Rec(2003)13 of the Committee of Ministers D.   Recommendation Rec(2012)3 of the Committee of Ministers IV.   EUROPEAN UNION LAW A.   Charter of Fundamental Rights of the European Union B.   Relevant European Union standards concerning the protection and processing of personal data C.   Relevant case-law of the CJEU and related guidelines 1.   Google Spain SL and Google Inc. v. Agencia Española de Protección de Datos (AEPD) and Mario Costeja González (judgment of 13   May 2014, C ‑ 131/12, EU:C:2014:317) 2.   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) 3.   Two judgments delivered by the CJEU on 24 September 2019 in response to requests for a preliminary ruling concerning the obligation for operators of search engines to grant requests for delisting (“de ‑ referencing”). 4.   TU and RE v Google LLC (judgment of 8 December 2022, C-460/20, EU:C:2022:962) V.   COMPARATIVE LAW AND PRACTICE A.   Contracting States B.   Case-law of France’s highest courts 1.   Judgment of 12 May 2016 of the Court of Cassation, First Civil Division 2.   Judgment of 17 February 2021 of the Court of Cassation, First Civil Division 3.   Thirteen judgments delivered by the French Conseil d’État on 6   December 2019 C.   Judgment of the High Court of England and Wales (QB) of 13   April 2018 in NT1 and NT2 v. Google LLC [2018] EWHC 799 D.   Spanish Constitutional Court judgment of 4 June 2018 (no.   58/2018) E.   Case-law of the German Federal Constitutional Court ( Bundesverfassungsgericht ) and the Federal Court of Justice ( Bundesgerichtshof ) 1.   Federal Constitutional Court judgment 1 BvR 16/13 of 6   November 2019 (“Right to be forgotten I”) 2.   Federal Constitutional Court judgment 1 BvR 276/17 of 6   November 2019 (“Right to be forgotten II”) 3.   Judgment of the German Federal Court of Justice of 26 January 2021 (VI ZR 437/19) F.   Case-law of the Italian Court of Cassation THE LAW ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION A.   The Chamber judgment B.   The parties’ submissions 1.   The applicant 2.   The Government C.   Submissions of the third-party interveners 1.   The third-party intervener G. 2.   Joint position of sixteen third-party interveners represented by the organisation ARTICLE 19 D.   The Court’s assessment 1.   Existence of an interference “prescribed by law” and pursuing a “legitimate aim” 2.   Whether the interference was “necessary in a democratic society” (a)   Preliminary considerations regarding the scope of the case and the terminology used (i)   Scope of the case (ii)   Terminology used (b)   General principles (i)   Article 10 and the protection of digital press archives (ii)   Article 8 and protection of the “right to be forgotten” (iii)   The criteria to be applied by the Court (c)   Application to the present case (i)   The nature of the archived information (ii)   The time elapsing since the events and since initial and online publication (iii)   The contemporary interest of the information (iv)   Whether the person claiming entitlement to be forgotten is well known, and his or her conduct since the events (v)   The negative repercussions of the continued availability of the information online (vi)   The degree of accessibility of the information in the digital archives (vii)   The impact of the measure on freedom of expression and more specifically on freedom of the press (d)   Conclusion OPERATIVE PROVISION CONCURRING OPINION OF JUDGE KRENC DISSENTING OPINION OF JUDGE RANZONI JOINED BY JUDGES KŪRIS, GROZEV, EICKE AND SCHEMBRI ORLAND In the case of Hurbain v. Belgium, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Marko Bošnjak, President ,   Pere Pastor Vilanova,   Arnfinn Bårdsen,   Faris Vehabović,   Egidijus Kūris,   Iulia Antoanella Motoc,   Yonko Grozev,   Carlo Ranzoni,   Alena Poláčková,   Tim Eicke,   Jovan Ilievski,   Jolien Schukking,   Péter Paczolay,   Gilberto Felici,   Lorraine Schembri Orland,   Ana Maria Guerra Martins,   Frédéric Krenc , judges , and Johan Callewaert, Deputy Grand Chamber Registrar, Having deliberated in private on 9 March and 23 November 2022 and on 10 May 2023, Delivers the following judgment, which was adopted on the last ‑ mentioned date: INTRODUCTION 1.     The present case concerns a civil judgment against the applicant, the publisher of the Belgian daily newspaper Le Soir , ordering him to anonymise, on grounds of the “right to be forgotten”, the electronic online version of an article in the archives which mentioned the full name of G., the driver responsible for a fatal road-traffic accident in 1994. In his application the applicant relied on Article 10 of the Convention. PROCEDURE 2.     The case originated in an application (no. 57292/16) against the Kingdom of Belgium lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Belgian national, Mr Patrick Hurbain (“the applicant”), on 26 September 2016. 3.     The applicant was represented by Mr A. Berenboom and Ms   S.   Carneroli, lawyers practising in Brussels. The Belgian Government (“the Government”) were represented by their Agent, Ms I. Niedlispacher, of the Federal Justice Department. 4.     The application was allocated to the Third Section of the Court (Rule   52 § 1 of the Rules of Court). On 7   September 2018 the Government were given notice of the application. G. was given leave to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44   §   3). 5.     On 22 June 2021 a Chamber of the Third Section, composed of Georgios A. Serghides, President, Paul Lemmens, Georges Ravarani, María   Elósegui, Darian Pavli, Anja Seibert-Fohr, Peeter Roosma, judges, and Milan Blaško, Section Registrar, unanimously declared the application admissible and held, by six votes to one, that there had been no violation of Article 10 of the Convention. The dissenting opinion of Judge Pavli was annexed to the judgment. 6.     On 16 September 2021 the applicant requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention. On 11 October 2021 the panel of the Grand Chamber granted the request. 7.     The composition of the Grand Chamber was determined in accordance with the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. 8.     The applicant and the Government each filed further written observations on the merits of the case (Rule 59 § 1). 9.     The President of the Grand Chamber gave leave to sixteen organisations and entities, all represented by the organisation ARTICLE 19, to submit written comments (Article 36 § 2 of the Convention and Rule   44   §   3). G. was informed that the leave to intervene granted in the Chamber proceedings continued before the Grand Chamber. The third-party interveners submitted comments before the Grand Chamber. 10.     A hearing took place in public in the Human Rights Building, Strasbourg, on 9 March 2022. There appeared before the Court: (a)     for the Government Ms   I . Niedlispacher ,   Agent , Ms   I . Leclercq , Co-Agent,   Adviser ; (b)     for the applicant Mr   A. Berenboom, Lawyer,   Counsel , Ms   S. Carneroli, Lawyer,   Counsel .   The Court heard addresses by Mr Berenboom and Ms Carneroli and by Ms   Niedlispacher and Ms Leclercq, and their replies to judges’ questions.   THE FACTS 11.     The applicant was born in 1959 and lives in Genappe (Belgium). THE BACKGROUND TO THE CASE 12.     The applicant is the publisher of the daily newspaper Le Soir , one of Belgium’s leading French-language newspapers. 13.     In a 1994 print edition of the newspaper an article of around twenty lines in length, concerning a series of fatal road-traffic accidents occurring within a few days, reported on a car accident caused by G., who had been under the influence of alcohol at the time. The accident led to the death of two people and injured three others. The article mentioned G.’s full name. G. was a doctor at the relevant time and continues to exercise that profession. In 2000 he was convicted in connection with the incident and sentenced to a suspended term of two years’ imprisonment. He served his sentence and was rehabilitated in 2006. 14.     Since 13 June 2008 the newspaper’s website has provided an electronic version of its archives dating back to 1989, including the above ‑ mentioned article. When the archives were published online, and throughout the proceedings before the domestic courts, the articles were accessible free of charge on the website. 15 .     On 15 June, 7 July and 19 August 2010 G. wrote to the legal department of the public limited company S.A. Rossel et Compagnie, the owners of Le Soir , requesting that the article be removed from the newspaper’s electronic archives or at least rendered anonymous. In support of his request G. referred to the fact that he was a doctor and that the article appeared on the list of search results when his name was typed into search engines including the newspaper’s internal search engine and Google. He feared being dismissed on this account or losing patients, referring to “a professional death foretold”. 16.     On 16 June 2010 the legal department of S.A. Rossel et Compagnie refused to remove the article from the archives. On 29 December 2010 S.A. Rossel et Compagnie, in a registered letter, served notice on the managing director of Google Belgium to delist the article. Reminders were subsequently sent by registered post on 24 January and 23 February 2011. Before the domestic courts and the Court, the applicant stated that these steps had produced no response. 17.     On 30 March 2012 G. brought the case before the Council for Journalistic Ethics ( Conseil de déontologie journalistique – “the CDJ”), the self-regulatory body of the French and German-speaking media in Belgium. He pointed out that if a search was carried out at that time via the search engine of the website www.lesoir.be based on his first name and surname, the article of 10 November 1994 appeared in sixth place, that is, on the first page of results; this was in fact the only article on the website lesoir.be which mentioned G. He added that when a Google search was performed based on his first name and surname, the first result on the list was the article on www.lesoir.be. 18.     On 18 April 2012 the CDJ declared the request inadmissible on the grounds that the dispute did not concern a matter of journalistic ethics. It pointed to the solutions that had been adopted by Belgian news publishers with regard to electronic press archives, namely the right to rectification (in cases where the information was inaccurate) and the right of electronic communication (in cases where the information was incomplete). THE DOMESTIC COURT PROCEEDINGS 19.     In a summons served on 24 May 2012 G. instituted proceedings against the applicant in the Neufchâteau Court of First Instance, seeking to have the electronic archived version of the article in question anonymised on the basis of Article   1382 of the Civil Code. In the alternative, should the applicant actually provide irrefutable technical evidence of the impossibility of making the information anonymous, G. sought an order requiring him to add a “noindex” tag to the online version of the article to prevent it from appearing on the list of results when G.’s name was typed into the search engine of the newspaper’s website. In G.’s view, even though he had addressed a reasonable and substantiated request to that effect to the applicant, the latter had kept the article online without anonymising it or adding a noindex tag, and had thus committed a fault and infringed G.’s “right to be forgotten”. 20 .     In his written submissions the applicant objected to anonymisation and stated, among other things, that G. had argued in his statement of claim that the article was accessible to anyone who simply carried out an Internet search based on his first name and surname. In the applicant’s view, this actually amounted to a criticism of the powerful nature of search engines. The applicant further stated that he had given notice to the administrator of the search engine Google to delist the article in question. As the search engine had refused to do so voluntarily, the applicant took the view that it was for the claimant to take proceedings against the search engine, since the latter was responsible for indexing the article. The applicant argued that this was the practice, for instance, in France, where the courts regularly ordered Google to delist content that infringed individuals’ privacy. He added that Google’s activities, unlike those of news publishers, were purely commercial, and Google could not rely on a right to information or a duty to preserve the archives or a duty to remember. 21 .     In a judgment of 25 January 2013 the Court of First Instance allowed most of G.’s claims. Noting that the applicant had not adduced any evidence of the impossibility of anonymising the article, the court ordered him to replace G.’s first name and surname by the letter X in the digital version of the article featured on the newspaper’s website and in any other database for which he was responsible. The applicant was ordered to pay one euro to G. in respect of non-pecuniary damage and to pay G.’s costs. The court rejected G.’s requests for an anonymised version of the judgment to be sent to the parties and to possible third parties and for the judgment to be declared immediately enforceable. 22.     The applicant appealed. 23 .     In his written pleadings   the applicant submitted, among other arguments, that the way in which the database of the newspaper Le Soir worked meant that it was not possible to amend archived articles and hence to replace G.’s name with the letter X. Furthermore, the noindex tags that might have prevented the article from being indexed by external search engines were technical tools that were liable to lead to problems on the website concerned and were provided by the operators of those search engines, which required users to open an account. He therefore opposed such a measure. Lastly, the applicant pointed out that the Court of Justice of the European Union (“the CJEU”) had previously ruled that measures requiring electronic communications to be filtered or blocked had to have a domestic legal basis that was accessible, clear and foreseeable; in his view, no such basis had existed in the present case. 24 .     In his summarised observations to the Court of Appeal, G. requested that the first-instance judgment be upheld. 25.     In a judgment of 25 September 2014 the Liège Court of Appeal upheld the first-instance judgment in its entirety. The Court of Appeal began by noting expressly that each of the parties had fundamental rights – the right to freedom of expression in the applicant’s case and the right to respect for private and family life in G.’s case – which were guaranteed by national and international standards, but which were not absolute and were of equal ranking. It referred in its reasoning to Articles 8 and 10 of the Convention. 26.     As to the criterion of lawfulness required in order to derogate from the principle of freedom of expression, the Court of Appeal noted that the “right to be forgotten” was considered by the domestic case-law and the legal literature to be an integral part of the right to respect for private life as enshrined in Article 8 of the Convention, Article 17 of the International Covenant on Civil and Political Rights and Article 22 of the Constitution. That was sufficient to satisfy the lawfulness test in order to derogate from the principle of freedom of expression. The Court of Appeal dismissed the applicant’s argument that Article 1382 of the Civil Code did not provide a clear and foreseeable legal basis. The provision in question constituted the ordinary rules on liability and was applicable to news outlets, which could not be unaware that they might be held liable if the exercise of press freedom caused damage resulting from an infringement of the rights of others. As the Court of First Instance had observed, Articles 1382 et seq. of the Civil Code, as interpreted by the Belgian legal literature and case-law, constituted legislation that was sufficiently accessible, clear, precise and foreseeable for the purposes of Article 10 § 2 of the Convention. 27 .     The Court of Appeal went on to dismiss the applicant’s argument that G.’s action had been brought against him erroneously since it should have been directed against the search engine operators. The court found as follows: “The indexing of the impugned article by search engines is only possible because the article is present in the database of Le Soir in non-anonymised form and without any noindex tag. As observed above, [G.] is entitled to bring his action against the news publisher with a view to having the article concerning him anonymised, resulting in the removal of the results obtained following a search based on his first name and surname.” 28 .     Regarding the “right to be forgotten”, which, in the applicant’s submission, was not applicable in the case at issue, the Court of Appeal stressed as follows: “Alongside the traditional aspect of the right to be forgotten linked to the fresh disclosure by the press of a person’s previous convictions, there exists a second aspect linked to the erasure of the digital data, and in particular the data available on the Internet. The present dispute, which concerns the digitisation of journalistic archives, raises issues in relation to the latter aspect, namely the right to be forgotten online. That right concerns the possibility for an individual to request the erasure of data concerning him or her, and more specifically data posted online, after a given period. The aim, therefore, is no longer to prevent or punish the disclosure of past events, but to obtain the removal of information available on the Internet ... This right to be forgotten online was recognised very recently by the Court of Justice of the European Union (CJEU (Grand Chamber), 13 May 2014, Case C-131/12). In that judgment the CJEU held that the requirement regarding fresh disclosure of the information could be inferred from the effect of the search tool, which gave prominence to information that would not otherwise be visible online ... It is true that the CJEU judgment concerned a dispute between a Spanish citizen and the operator of a search engine (Google). Nevertheless, the principles established by that judgment can be transposed to the case at hand in so far as the publisher has also enabled the article in question to be given prominence via the search engine of the newspaper’s website, which is accessible free of charge. The effect is also multiplied significantly by the development of the ‘crawling’ software used by Google-type search engines ... The right to be forgotten online, like the traditional right to be forgotten, is not unlimited and has to be tightly regulated in so far as it is liable to come into conflict with the freedom of expression of the press. The case-law, and in particular that of the Court of Justice of the European Union, has defined a number of criteria and conditions designed to guide the courts in assessing whether a proper balance had been struck between the fundamental rights enshrined, inter alia , in Articles 8 and 10 of the European Convention on Human Rights (see, in particular, [ECHR], 7 February 2012, Von Hannover v. Germany , and CJEU (GC), 13   May 2014, Google v. Mario Costeja González ; see also Namur Court of First Instance (Civil), 17 November 1997, JLMB [ Revue de jurisprudence de Liege, Mons et Bruxelles ], 1998, p. 781). Thus, for recognition of a right to be forgotten, the facts must have been disclosed lawfully in the first place and must be of a judicial nature; there can be no contemporary interest in their disclosure; the facts cannot be of historical interest; a certain time must have elapsed between the two disclosures [or, more precisely, with regard to the online archived version of an article published at the time of the events, a certain time must have elapsed between the original dissemination of the article, irrespective of its format, and the request for anonymisation]; and the person concerned must not be a public figure, must have an interest in being reintegrated into society and must have discharged his or her debt.” 29 .     In the Court of Appeal’s view, its task was “to ascertain whether, in the instant case and in the light of these criteria, the restriction on press freedom stemming from [G.]’s request pursue[d] a legitimate aim and satisfie[d] the proportionality test, in conformity with Article 10 § 2 of the European Convention on Human Rights”. In that connection the Court of Appeal found as follows: “It is not disputed that the original publication of the article in question in the edition of the daily newspaper Le Soir of 10 November 1994 was lawful and that the facts reported on were of a judicial nature. The fresh disclosure, within the meaning specified above, of the facts does not have any value in terms of newsworthiness. [G.] does not hold any public office, and the mere fact that he is a doctor in no way justifies his continued identification in the online article some twenty years after the events. This is illegitimate and disproportionate, since it does not add anything to the value of the article and is liable to cause indefinite and serious harm to [G.]’s reputation by giving him a virtual criminal record, despite the fact that he has not only served his sentence after a final conviction for the offence but has also been rehabilitated. Twenty years after the events, the identity of a person who is not a public figure does not add to the article’s public interest, as the article merely makes a statistical contribution to a public debate on road safety. Contrary to [the applicant]’s submissions, removing [G.]’s first name and surname does not render the information devoid of interest since it will have no impact on the actual substance of the information conveyed, which concerns a tragic road-traffic accident caused in particular by the harmful effects of alcohol. [The applicant]’s arguments concerning the duty to remember and the need to preserve a full and faithful record in the archives are irrelevant. No request was made for the impugned article to be removed from the archives, but simply for the electronic version to be rendered anonymous; the paper archives remain intact and [the applicant] can still ensure the integrity of the original digital version. The events reported on in the article are clearly not of historical significance, as the article relates to an unexceptional – albeit tragic – short news story which is not alleged, still less demonstrated, to have been a source of particular public concern. Lastly, a significant length of time (sixteen years) elapsed between the initial publication of the article in Le Soir in November 1994 and the first formal request for anonymisation, made in a letter dated 15 June 2010; in all, some twenty years have now passed since the article was first published ... As pointed out above, there is no public interest in learning the identity of the person responsible for a road-traffic accident that occurred almost twenty years ago. It follows from all these considerations that: - [G.] satisfies the criteria for claiming a right to be forgotten, and that keeping the article in question online without rendering it anonymous, many years after the events it reported on, is liable to cause him disproportionate harm when weighed against the benefits of strict observance of [the applicant]’s right to freedom of expression; - the conditions of lawfulness, legitimacy and proportionality imposed by Article   10   §   2 of the European Convention on Human Rights in respect of any limitation of freedom of expression are satisfied in the present case.” 30 .     The Court of Appeal went on to give the following reasons for its decision: “[G.]’s request for anonymisation, made first in correspondence to Le Soir and subsequently in the context of the present proceedings, is apt to ensure a proper balance between the interests at stake. That balance would not be achieved by the establishment of a right to digital rectification or communication as proposed by [the applicant], which in the present case would consist in allowing the respondent to publish a short text, containing a link to the original article, referring to the rehabilitation order. Such techniques are not appropriate in the context of an article reporting information that has become damaging owing to the passage of time. The techniques proposed by [the applicant] would allow the stigmatising effect of the serious offences committed by [G.], and of the sentence he has already served, to persist indefinitely and would render the rehabilitation order in his favour meaningless. The most effective means of protecting [G.]’s privacy without interfering to a disproportionate extent with [the applicant]’s freedom of expression is to anonymise the article on the website of Le Soir by replacing [G.]’s first name and surname with the letter X ...” 31 .     The Court of Appeal found that by refusing to accede to the request to anonymise the article, the applicant had not acted in the way that any prudent and diligent publisher would act in the same circumstances. In the Court of Appeal’s view, that refusal constituted a fault. The court further found as follows: “[The applicant] is unfounded in his assertion that [G.] has failed to prove the damage caused to him by the continued online availability of the article in non-anonymised form. A simple search based on [G.]’s first name and surname in the search engine on Le Soir ’s website or on Google immediately brings up the article; this is undoubtedly a source of harm to [G.], at least of a psychological nature. Such a situation makes knowledge of his previous conviction readily accessible to a wide audience which inevitably includes patients, colleagues and acquaintances, and is thus liable to stigmatise him, seriously damage his reputation and prevent him from reintegrating into society normally, despite the fact that many years have passed since he completed his sentence and was rehabilitated by the courts. ... [The applicant] contends that the damage sustained by [G.] results solely from the offence committed in 1994 and from the indexing by Google of the articles from Le Soir . In his view, no causal link has been established between the fault he allegedly committed and the damage for which compensation is sought. The court cannot accept this reasoning. There is of necessity a causal link between [the applicant’s] wrongful decision to keep the article of 10 November 1994 online without anonymisation and the damage referred to above. Had that decision not been taken, search engines such as Google would not bring the existence of the impugned article to light and there would be no infringement of [G.]’s right to be forgotten and to the protection of his reputation.” 32.     The Court of Appeal added the following: “... contrary to [the applicant]’s assertion, acceding to [G.]’s request does not confer on each and every individual a subjective right to rewrite history, nor does it make it possible to ‘falsify history’ or impose an ‘excessive burden of responsibility’ on [the applicant]. This court, like the lower court, is called upon to determine a specific dispute between two parties in the context of a one-off civil action for damages based on Article   1382 of the Civil Code, while seeking to ensure that a balance is struck between two competing fundamental rights claimed by the parties.” 33.     Regarding the applicant’s argument that it was not possible to anonymise the article in the archives, the Liège Court of Appeal held as follows: “[The applicant] argues that the way in which his newspaper’s database works means that it is not possible to ‘alter’ archived articles ... In support of his claims, he submitted a report drawn up on 21 June 2013 by the newspaper’s technical department ... The report in question, which was prepared in tempore suspecto by technicians who are in a relationship of dependency with [the applicant], does not provide any guarantees of impartiality and has no probative value. Such a report cannot in itself suffice as prima facie evidence of the alleged impossibility such as to justify recourse to an expert assessment. Moreover, the report does not state that it would actually be impossible to implement the measure requested (anonymisation of the article), but simply refers to the risks and costs. The only reference to impossibility concerns the ‘physical impossibility of withdrawing the newspapers that have been sold, the collections that have been distributed, and the numerous copies of the content available in physical and digital format in the public domain’ ..., something that has not been requested in the context of the present action. The technical argument advanced by [the applicant] to support his assertion that the action against him is unfounded is therefore dismissed.” 34.     Lastly, the Court of Appeal dismissed the cross-appeal lodged by G. in which he requested that an anonymised version of the judgment be sent to the parties and to possible third parties. 35.     The applicant appealed on points of law. In one of his grounds of appeal he alleged a violation of Article 10 of the Convention. In particular, he argued that the “right to be forgotten” was not enshrined either in clear, precise and accessible domestic legislation or in a higher-ranking international rule, but was derived solely from the legal literature and case ‑ law. He inferred from this that the Court of Appeal judgment had breached the requirement for the interference with the exercise of his right to freedom of expression to be lawful. The applicant further argued that the order for him to alter in the online archives the content of an article that had been published in the past and was available in the paper archives amounted to unjustified interference with his freedom of expression. In particular, he disputed the assertion that the fact of a publisher posting an article of this kind online in a digital archive, in similar fashion to a library making an archived article available, constituted fresh disclosure for the purposes of the domestic courts’ case-law. 36.     In a judgment of 29 April 2016 the Court of Cassation dismissed the appeal on points of law. It found that the applicant’s argument that the Court of Appeal had derived the “right to be forgotten” online solely from the legal literature and case-law, to which it had attributed general regulatory scope, failed on factual grounds. The Court of Cassation held as follows: “... It follows [from] the reasoning [of the Court of Appeal judgment], firstly, that the judgment under challenge regards the right to be forgotten online as an ‘intrinsic component of the right to respect for private life’ (and indeed states so), and views such interference with the right to freedom of expression as may be justified in order to protect that right as being based not on the legal literature and case-law – which the judgment does not recognise as having general regulatory scope – but on Article 8 of the [Convention], Article 17 of the International Covenant on Civil and Political Rights and Article 22 of the Constitution; and, secondly, that it refers to the judgment of the Court of Justice of the European Union only to lend support to its view on the scope of that right to be forgotten.” 37 .     The Court of Cassation further noted that the Court of Appeal had not based the “right to be forgotten online” on the European or domestic provisions concerning the protection of individuals with regard to the processing of personal data, namely EU Directive 95/46/EC (see paragraph   68 below) and the Belgian Act of 8 December 1992 (see paragraph   49 below). 38.     The Court of Cassation also held as follows: “While Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 19 of the International Covenant on Civil and Political Rights, which protect freedom of expression and, accordingly, press freedom, give the print media the right to place digital archives online and give members of the public the right to access those archives, these rights are not absolute and may in some circumstances, within the strict limits laid down by those treaty provisions, yield to other rights that are also worthy of respect. The right to respect for private life, which is guaranteed by Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 17 of the International Covenant on Civil and Political Rights and Article 22 of the Constitution, and which – as acknowledged in this limb of the ground of appeal – encompasses the right to be forgotten, allowing an individual found guilty of an offence to object in some circumstances to his or her previous convictions being made public once more through fresh disclosure of the facts, may justify interference with the right to freedom of expression. The digital archiving of an old press article which, at the time it was printed, reported lawfully on past events that are now covered by the right to be forgotten, so construed, is not exempt from possible interference with the right to freedom of expression in order to protect the right to be forgotten. Such interference may consist in altering the archived text so as to prevent or make good a breach of the right to be forgotten. After stating ... that the dispute concerned ‘an ... aspect’ of the right to be forgotten relating to ‘the possibility for an individual to request the erasure of data concerning him or her, and more specifically data posted online, after a given period’, ‘[t]he aim [being] no longer to prevent or punish the disclosure of past events, but to obtain the removal of information available on the Internet’, the contested judgment found that, by placing the impugned article online, ‘[the appellant] enabled [that] article ... to be given prominence via the search engine of the newspaper’s website, which [was] accessible free of charge. The effect [was] also multiplied significantly by the development of the “crawling” software used by Google-type search engines’. Thus, the contested judgment ruled lawfully that the online archiving of the article in question amounted to a fresh disclosure of the respondent’s previous conviction that was liable to infringe his right to be forgotten. In adding, on the basis of factual remarks weighing the respondent’s right to be forgotten against the appellant’s right to create historically accurate archives and the public’s right to consult them, that ‘[the respondent] satisfie[d] the criteria for claiming a right to be forgotten, and that keeping the article in question online without rendering it anonymous, many years after the events it reported on, [was] liable to cause him disproportionate harm when weighed against the benefits of strict observance of [the appellant]’s right to freedom of expression