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Jul 19, 2016

Belgian Court Turns "Right to Be Forgotten" Into a Black Hole

The highest appellate court in Belgium has held that the European "right to be forgotten" -- which has generally been understood to require the removal of irrelevant and outdated information from search engine results, while keeping the original online material intact -- requires a newspaper to replace the name of a man who asserted rights under the principle with an "X" in an article on his 1994 drunk driving conviction, which was expunged in 2006.

The Court of Cassation (Dutch site) held in a April 29 ruling (in Dutch) upholding the trial court's ruling requiring the change.  According to the International Forum for Responsible Media Blog, the appeals court held that the complainant's privacy rights and damage caused by the article outweighed the free expression rights of the newspaper to maintain the article in its archive as it was originally published and of the public to access the article in that form.

The trial court actually reached its decision prior to the 2014 ruling by the European Court of Justice that brought the "right to be forgotten" to the fore.

According to INFORM,
The remedy of “anonymisation” was, in this case, relatively straightforward as Dr. Olivier G. only appears to have been mentioned in passing in the article complained of. A different article may have produced a different remedy.
But if other courts follow the Belgian court's ruling, the European "right to be forgotten" will become more of a menace to free speech, and to history.

It is one thing to require the removal of links to "out-of-date," embarrassing information from web search results: "de-indexing" the information, while keeping the original intact and available, although harder to find. But the Belgian court's ruling requiring rewriting the story to remove the complainant's name is not just making information difficult to obtain. It "whitewashes" the past.

While the obfuscation of an expunged 20-year-old drunk driving conviction may not seem like much, it opens the door for other aggrieved parties or groups to seek the removal of more substantial facts of the past. And while the expunged information may seem irrelevant now, who knows what importance it may have in the future: but by then, of course, the original material may be all but lost.

George Orwell would be proud -- or horrified.

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