On 29 April 2016, the Belgian Supreme Court (Hof van
Cassatie / Cour de Cassation) (the "Court") issued a
judgment in a dispute between the publisher of the Belgian
newspaper "Le Soir" (the "plaintiff"), and a
reader of Le Soir who is also a physician ("Dr.
Dr. O.G. had been involved in a car accident causing the death
of two persons. This accident was reported in the November 1994
edition of Le Soir featuring a specific reference to Dr. O.G.'s
name and surname. In June 2008, Le Soir established on its website
a system of free access to all the articles which it had published
since 1989. Through this system, the press article concerning Dr.
O.G could be accessed freely by means of a simple query on the
basis of his name launched not only from Le Soir's archives
search engine but also from other search engines such as Google.
Claiming that the online availability of this article with
reference to his name was causing him harm, Dr. O.G. requested the
newspaper to anonymise the article. Le Soir refused and Dr. O.G.
brought an action against the plaintiff seeking the anonymisation
of the article on the basis of Article 1382 of the Civil Code.
On 25 September 2014, the Court of Appeal of Ličge held
that the online archive of the article violated Dr. O.G.'s
right to be forgotten. In particular, the Court of Appeal reasoned
that the case turned on finding a balance between the
plaintiff's right to freedom of expression and Dr. O.G.'s
right to respect for his private life. The Court of Appeal held
that the right to be forgotten (in both its traditional and digital
form) is an intrinsic component of the right to respect for
one's private life.
The Court of Appeal furthermore listed seven conditions for the
right to be forgotten to apply: (i) an initial legitimate
publication; (ii) the reported facts are of a judicial nature;
(iii) there is no current reason for the new publication; (iv) the
absence of historic interest; (v) the passing of time between both
publications; (vi) the data subject does not have a public life;
(vii) the data subject has paid its debt. Considering that these
criteria applied to the case at hand, the Court of Appeal ordered
the plaintiff to replace Dr. O.G.'s name and surname by the
letter X in the article appearing on the website.
The Court, which only judges on issues of law, confirmed the
Court of Appeal's judgment and rejected the position that the
"right to be forgotten" would not have any legal basis.
The Court also held that the plaintiff's refusal to heed the
request for anonymisation could be considered a fault within the
meaning of Article 1382 of the Civil Code.
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In light of the much anticipated ICO draft GDPR (the General Data Protection Regulation) Consent Guidance being published yesterday, 2 March 2017, we will be running a mini-series on the guidelines under consultation and the impact the GDPR will have on the much vexed position of consent and the impact on your business.
The first of our four discussions on the ICO guidelines for Consent will focus on the meaning of consent under the GDPR (General Data Protection Regulation) and how this change enhances the previous law on consent to data processing.
The fourth and final part of our mini-series on the draft ICO guidance on Consent, published on 2 March 2017, focuses on the practical impact the GDPR (General Data Protection Regulation) will have on how your organisation records and manages consent.
A fundamental aspect of all fair and lawful processing of personal data under the current data protection rules is the requirement for the party who is the data controller to meet one or more conditions ("the conditions for processing").
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