APD/GBA (Belgium) - 104/2022
From GDPRhub
| APD/GBA - 104/2022 | |
|---|---|
 | |
| Authority: | APD/GBA (Belgium) |
| Jurisdiction: | Belgium |
| Relevant Law: | Article 17(1)(c) GDPR Article 17(3)(a) GDPR Article 89 GDPR |
| Type: | Complaint |
| Outcome: | Rejected |
| Started: | 23.03.2021 |
| Decided: | 16.06.2022 |
| Published: | 16.06.2022 |
| Fine: | n/a |
| Parties: | De Tijd |
| National Case Number/Name: | 104/2022 |
| European Case Law Identifier: | n/a |
| Appeal: | Unknown |
| Original Language(s): | Dutch |
| Original Source: | Beslissing ten gronde 104/2022 (in NL) |
| Initial Contributor: | Enzo Marquet |
The Belgian DPA held that a data subject's right to data protection - more specifically, the right to be forgotten - did not overrule a media outlet's right to freedom of expression and information and the integrity of online archives.
English Summary
Facts
On 23 March 2021, the DPA received a request for mediation from the data subject. The request concerned the controller's refusal to honor the data subjects request for erasure. The controller is media outlet De Tijd. De Tijd published an article about the data subject in the past.
The data subject used to have an electric scooter business. In 2018 it was acquired by another company. The controller then published an article about the data subject and his (previous) business. The article also became accessible in the online archives of the controller.
The data subject stated that the article had a negative connotation (even after revision of inaccuracies at their request). Furthermore, the was shown on a search engine when you searched his name, which hurts his professional career. The data subject therefore asked the controller to anonymize the article. The controller allegedly did not respond to this request.
The controller stated that it does not have to remove or anonymize the article based on the freedom of expression and the integrity of media archives. It followed that the way an article is written falls under editorial freedom. Additionally, the controller stated that the data subject sought out and profited from the media attention. It cannot be that when a person gives up its anonymity for a certain objective, but that objective failed, that media archives must be removed.
Holding
The DPA noted that Article 17(1) GDPR is not applicable when processing is necessary to exercise the right to freedom of expression and information (Article 17(3)(a)). A balance must be found between the freedom of expression of information and the right to protection of personal data.
The DPA agrees with the data subject that the inclusion of the article in the name-based search results may constitute a more serious interference on the right to privacy of the data subject, since it is more accessible and may play a decisive role in the spread of that information. However, the data subject did not address a search engine, but an online archive. The DPA will therefore only address the applicability of Article 17(1)(c) (right to be forgotten) and it's exception laid down in Article 17(3)(a).
The DPA stated that the freedom of expression and journalistic liberty (Article 10 ECHR) form an important pillar in a democratic society. It followed that online archives are of special importance because they are easily accessible and mostly free. Only very pressing reasons justify an intervention with these fundamental rights. The mere fact that an article has negative connotation is not sufficient to compromise the integrity of online archives.
The DPA argued that the article has societal relevance (for investors and entrepreneurs) did not contain factual inaccuracies. Furthermore, the data subject could reasonably expect media attention, as he initiated contact with them. Lastly, the article was only accessible to subscribers. It was thus in line with the adequate measures of Article 89 GDPR.
The DPA therefore held that the controller lawfully refused the data subject's request for erasure pursuant to Article 17(3)(a).
Comment
A request for mediation is a low-threshold complaint procedure in Belgium.
Further Resources
Share blogs or news articles here!
English Machine Translation of the Decision
The decision below is a machine translation of the Dutch original. Please refer to the Dutch original for more details.
1/12
Dispute room
Decision on the merits 104/2022 of 16 June 2022
File number : DOS-2021-03472
Subject : Complaint resulting from the refusal to take positive action on the
exercising a right to erasure with regard to press articles published in the
Publisher's online archive are available
The Disputes Chamber of the Data Protection Authority, composed of Mr Hielke Hijmans,
chairman and Messrs. Jelle Stassijns and Christophe Boeraeve, members.
Having regard to Regulation (EU) 2016/679 of the European Parliament and Council of 27 April 2016 on
the protection of natural persons with regard to the processing of personal data and
on the free movement of such data and repealing Directive 95/46/EC (General
Data Protection Regulation), hereinafter GDPR;
Having regard to the law of 3 December 2017 establishing the Data Protection Authority, hereinafter WOG;
Having regard to the internal rules of procedure, as approved by the Chamber of Representatives
on December 20, 2018 and published in the Belgian Official Gazette on January 15, 2019;
Having regard to the documents in the file;
has taken the following decision regarding:
The complainant: Mr X, hereinafter referred to as “the complainant”;
The defendant: Y, hereinafter referred to as “the defendant”, Judgment on the merits 104/2022 - 2/12
I. Fact-finding procedure
1. On 23 March 2021, the complainant submitted a request for mediation to the
Data protection authority against the defendant.
The subject of the mediation concerns the refusal to give a positive result to the
exercising a right to erasure with regard to press articles published in the online
publisher's archives are available. In 2016, the complainant had a sharing system with electrical
scooters (Z) established. In 2018, this company was taken over by another
company (W). According to the complainant, the newspaper De Tijd had a very negative and critical opinion about this
article written. The complainant has forwarded his comments to the editors of the newspaper
transferred after which some erroneous data were deleted. However, according to the complainant,
maintain the negative tenor of the article. The complainant believed that the negative tenor of the
article in conjunction with the project that was discontinued would have an adverse impact on his
professional career. After all, according to the complainant, the article appears in the search results
when a person would look up information about him. Consequently, the complainant has requested
addressed to the defendant to remove his name from the article in question. The complainant argues that
the defendant failed to respond to his repeated requests.
2. On September 1, 2021, the request for mediation by the Frontline Service was admissible
declared.Thenthefirstlineservicecontactedthedefendant on 1 September 2021
in the context of the conciliation procedure. On September 17, 2021, the Frontline Service
receive a response from the defendant. The defendant made communication with the
complainant stating that, on the basis of the agreement between the Belgian media groups
concluded 'Charter on the right to be forgotten', the complainant has referred to Google
to submit a request there with a view to de-indexing the article in the search engine
from Google. Finally, the defendant states that it has not had a message since March 29, 2021
received from the complainant, so that it therefore assumed that the complainant would not
insisted on a defendant's removal of the article and settled for a de-
indexation by Google.
3. On 7 October 2021, the Frontline Service confirms to the complainant that no amicable agreement
could be found and informs the complainant that the request for mediation is in agreement
can take the form of a complaint which will then be forwarded to the
Disputes room for treatment on the merits. Also on October 7, 2021, the complainant gave his
permission to the Frontline Service to submit the file as a complaint to the
Dispute room.
4. On October 11, 2021, the complaint will be declared admissible by the Frontline Service on the basis of
Articles 58 and 60 of the WOG and the complaint pursuant to Article 62, § 1 of the WOG will be forwarded to
the Disputes Chamber., Decision on the merits 104/2022 - 3/12
5. On November 16, 2021, the Disputes Chamber will decide on the basis of Article 95, § 1, 1° and Article 98WOG
that the file is ready for processing on the merits.
6. On November 16, 2021, the parties concerned will be notified of the provisions by email
as stated in article 95, § 2, WOG, as well as from this article 98 WOG.
of Article 99 WOG of the time limits to submit their defences.
7. The final date for receipt of the defendant's statement of defense was thereby set
laid down on 28 December 2021, this for the complainant's reply on 18 January
2022 and this for the statement of reply of the defendant on 8 February 2022.
8. On November 18, 2021, the complainant electronically accepts all communication regarding the case.
9. On November 19, 2021, the defendant electronically accepts all communications regarding the case.
10. Also on 19 November 2021, the defendant requests a copy of the file (Article 95, §2, 3°
WOG), which was sent to him on November 26, 2021.
11. On 24 December 2021, the Disputes Chamber will receive the statement of defense from the
defendant. First, the defendant disputes the complainant's position that the article
towards the complainant would have a negative tenor. The defendant argues that the article only
in one passage refers to the complainant where that passage is also the verbatim representation of a
statement of the complainant quoted below:
‘At the start, the founders [complainant] and [co-founder] dreamed of 700 shared scooters
Brussels by the end of 2017. That goal turned out to be unattainable. “After a pilot project, we decided
to grow at a slower rate”, say the founders
can add, but that is logistically impossible. We do not intend to expand very quickly.”
The defendant indicates that it cannot detect any negative tenor in this passage.
12. Next, the defendant argues that the article does not contain incorrect information. If this is it
If this is the case, quod non according to the defendant, the defendant as a media company according to the
code of ethics obliged to loyally rectify this incorrect information (Article 6 of the
Journalistic Code).
13. Third, the defendant points out that when looking up the name of the complainant via Google,
the article in question does not appear on the first page.
14. Next, the defendant emphasizes that the request for anonymisation, i.e. an exercise of the
upright data erasure should not be assigned automatically, but an assessment of
this request must always take into account the context of this request
these applications always in accordance with the principles laid down in the 'Charter right to'
oblivion” endorsed by all media players in Belgium. The publisher, in this case the
Defendant weighs up the data subject's right to be forgotten with the right to, Decision on the merits 104/2022 - 4/12
freedom of expression/information and the integrity of press archives. The defendant argues that
as a press publisher, it has made this assessment in good conscience and that it concludes that there is
there can be no question of the right to be forgotten. The, according to the defendant, vague argumentation of the
complainant about a possible negative impact on his further career as a result of the article in question,
does not show why his right to be forgotten should take precedence over the role of the press as watchkeeper
of democracy in which it reports on socially relevant matters on an objective basis.
According to the defendant, its reporting about the acquired company and the link
together with the complainant a certain social relevance for potential future
investors/business partners of the complainant.
15. Finally, the defendant refers to a recent judgment before the Council for Journalism in which
it is also emphasized that the rights and interests of the data subject must be weighed up
against the social interest of an archive that is as complete as possible and of the right to
information.
16. On 30 December 2021, the Disputes Chamber will receive the statement of reply from the complainant.
First of all, the complainant wishes to emphasize that the article does contain a negative tenor.
The complainant argues that the defendant has the following negatively charged sentences in its claims:
omitted. It concerns the following sentences: “[t]he launch of the new sub-concept went well
hesitant” and “[t]he takeover by W must give Z a second breath”. He believes that these sentences
can only be interpreted negatively.
17. Second, the complainant emphasizes that the article did contain incorrect information as indicated
in the conclusions as follows:
a. “The launch of the new sub-concept was hesitant" - The launch went well
excellent. The targets in terms of customer numbers and consumption were achieved smoothly.
Since the journalist himself states that no figures were released, I (the complainant)
nor how he can conclude how the launch went...
b. "That goal [to put 700 scooters] turned out to be unachievable" - That goal was logistically not
desirable, it was absolutely achievable.
c. “The takeover by W must give Z a second breath" - The cooperation must be stabilitio
result in an acquisition. There was absolutely no need to find "a second breath".
18. Next, the complainant contests the defendant's contention that the article in question only
secondpageofsearchresultsonGoogleappears.The complainant declaresthatthearticletops
appears, because of Google's algorithms.
19. As a fourth point, the complainant states that an article in which a negative and incorrect representation is
given a business project can have a negative impact on his professional career. The
the complainant refers in this regard to the defendant's claims in which it states that it permanently intends, Decision on the merits 104/2022 - 5/12
inform about the link between Z and the complainant and the social relevance, including
for potential future investors and business partners.
20. Finally, the complainant considers that the judgment of the Council cited by the defendant for
Journalism in this case is irrelevant. After all, according to the complainant, the Council for Journalism
be a self-regulating body that only formulates an opinion with its statements. The complainant argues
also that there are plenty of other articles written about his company without a negative tenor
rendered the article in question unnecessary to inform the public.
21. On 7 February 2022, the Disputes Chamber received the statement of reply from the
defendant. In its reply, the defendant refers to Article 17 of the GDPR whereby
it argues that the present case falls under the exceptions of article 17, third paragraph AVG and so outside
falls within the jurisdiction of the Disputes Chamber. The defendant then outlines a history of
the complainant's company. The two sentences quoted by the complainant are, according to the
defendant not negative, but merely descriptive. As the third point, the defendant emphasizes that it
article does not contain any errors. The defendant then refers to editorial freedom
in which the journalist himself chooses the wording with which the story is presented. The journalist
is supported in this by the editor-in-chief so that these can formulate matters in a
certain way, even if the interviewee, in this case the complainant, does not agree. It
The fact that the complainant is not satisfied with the reporting in the newspaper is not, according to the defendant,
sufficient to invoke the right to be forgotten. The defendant then points out
that the complainant has relinquished some of its privacy by seeking the media's attention in the
in the context of the publicity of his company. It cannot be the intention that the media
archives and reporting have to adjust every time someone who is themselves anonymity
has given up, no longer want to because the initiative was not successful, according to the defendant.
Finally, the defendant refers again to the Council for Journalism. The Journalistic Code
contains various provisions regarding the right to the protection of personal data. This one
Code was drawn up by the Journalism Council and recognized and accepted by all journalists.
The rulings of the Council of Journalism are not only published via the website of the Council of the
Journalistically distributed, but also by the media to which the ruling relates
announced. This body is widely recognized by the entire media sector and its journalists
respected and regarded as authoritative.
II. Justification
II.1. Jurisdiction of the Dispute Chamber
22. The Disputes Chamber understands from the complaint that the complainant invokes Article 17.1.c) GDPR, and more
determined on his right to digital oblivion. In view of the content of the complaint, it falls to the
Litigation Chamber to Assess Whether the Defendant Rightly Refused to Respond to the Substance Decision 104/2022 - 6/12
request for anonymization of the bearing. For this refusal, the defendant invoked Article
17.3.a) GDPR. In line with its previous decision-making practice, the Disputes Chamber reminds
that the competence of the GBA in general, and of the Disputes Chamber in particular,
"is limited to the supervision of compliance with the data processing applicable
regulations, regardless of the sector of activity in which this data processing takes place", and that
it is not its task to take the place of the other authorities in the exercise of their
authorizations.
23. It is therefore up to the Disputes Chamber to assess whether the defendant complies with the GDPR
violated by refusing to comply with the request for anonymization in accordance with
Article 17.1.c) GDPR of the complainant. This assessment also concerns whether or not
Article 17.3.a) of the GDPR can be invoked, on the basis of which the
controller must make a balancing of interests in order to conclude whether
processing is necessary or not for the purposes of freedom of expression and information.
II.2. Validity of the request for anonymization
24. The complaint concerns the function of media archives in the electronic environment of the Internet and
its compatibility with the right to erasure in accordance with Article 17.1.c) and the
refusal to grant this right in accordance with Article 17.3.a) GDPR.
25. The Disputes Chamber refers in that regard to Article 17.1.c) of the GDPR, which provides that the
data subject has the right to request from the controller without undue delay
erasure of the personal data concerning him. Based on the same article,
the controller is obliged to provide the data without undue delay
to be deleted, inter alia, if the data subject objects in accordance with Article 21.1 GDPR
against the processing, and there are no overriding compelling legitimate grounds for the
processing. As explained above, the complainant has made a request in accordance with article 17.1.c)
addressed to the defendant.
26. Article 17.3.a) GDPR states, however, that Article 17.1 GDPR does not apply where such
processing is necessary for the exercise of the right to freedom of expression and
information. This article provides for an exception regulation that involves a balancing of interests between
provides for two fundamental rights, namely the balance between the right to freedom of expression and
information on the one hand and the right to protection of personal data on the other. It's on this
ground that the defendant has refused to comply with the request for
data erasure of the complainant.
1
See, for example, decisions 03/2020,41/2020, and 139/2021 of the Disputes Chamber, available on the website of the GBA, Decision on the merits 104/2022 - 7/12
27. In the context of the present file, the Disputes Chamber will thus examine whether the request for
data erasure in accordance with 17.1.c) GDPR was rightly refused by the defendant
in accordance with Article 17.3.a) GDPR, in particular the trade-off between freedom of expression
information and the right to protection of personal data.
28. The Disputes Chamber points out that in the present case the complaint was lodged against the
defendant as a press publisher. The European Court of Human Rights (hereinafter: “ECtHR”)
emphasized in the case M.L. and W.W. t. Germany that a publisher has as its main goal the
publishing original information. This finality is not the same as that of
search engines. After all, the aim of search engines is to enable internet users
to find this information, and even have a reinforcing effect on finding information
about a person concerned. What the consequences of the data processing for the personal
privacy, the CJEU has ruled that the inclusion of a web page in the name
based search results "a more serious violation of the fundamental right to personal
privacy of the data subject than the publication on the web page", since the
inclusion of information in search results "significantly affects access to that information"
facilitated for any Internet user who conducts a search for the data subject and
can play a decisive role in the dissemination of that information".
29. In its Guidelines 5/2019 on the criteria for the right to be forgotten under the GDPR
in the case of search engines, the European Data Protection Board
(European Data Protection Board -EDPB) in the same sentence the following:
"7.A number of things need to be considered when applying Article 17 GDPR
relating to the data processing of a search engine operator. It's in this
connection necessary to state that a distinction must be made between the
processing of personal data carried out in the context of the activities of the
operator of the search engine, and the processing performed by the publishers of the
third party websites such as media outlets providing online content for newspapers.[...]
9. Requests for deletion do not result in the completeness of the personal data
After all, the data is neither deleted from the original website, nor from
the index and cache of the search engine operator. For example, a
the data subject can strive for the deletion of personal data from the index of a
search engine originating from a media outlet such as a newspaper article. In that case, the
links to the personal data are removed from the search engine index; the
2EHRM June 28, 2018, 60798/10 and 65599/10, M.L. and W.W. t. Germany.
3CJEU, 13 May 2014, C-131/12 , Google Spain, §87.
4
European Data Protection Board (EDPB), Guidelines 5/2019 on the criteria for the right to be forgotten on
under the GDPR in the context of search engines of 7 July 2020
https://edpb.europa.eu/sites/default/files/files/file1/edpb_guidelines_201905_rtbfsearchengines_afterpublicconsultation_fr.pdf, Decision on the merits 104/2022 - 8/12
however, the article in question remains under the control of the media outlet and may be publicly available
remain available and accessible, even if it is no longer visible in the search results that
are based on searches that in principle contain the name of the data subject".
underline)
30. This distinction between search engines and publishers can therefore have important consequences for
the balancing of interests between freedom of expression and the right to protection of
personal data. The Disputes Chamber finds that the defendant has proposed to the
complainant to address a request for de-indexation to the search engines. Since no de-
indexation was requested by the complainant, the Disputes Chamber will rule in the present case
therefore, only as to whether the defendant's request for erasure was lawful
in accordance with Article 17.3.a) GDPR.
31. First of all, the Dispute Chamber reminds that freedom of expression becomes information
protected in Article 10, paragraph 1 of the European Convention on Human Rights (hereinafter:
“ECHR”). This right includes the freedom to hold opinions and the freedom to obtain information or
receive or impart ideas without interference from any public authority. It
ECtHR sees freedom of expression as an essential building block for a democratic
5
society, in which the press plays the essential role of public watchdog. The way in which the
6
The press works in this regard is in principle free, the so-called journalistic freedom. The ECtHR
takes as a starting point that journalistic freedom, as protected in Article 10, paragraph 1 of the
ECHR, extends beyond the protection of an objective and modest manner of reporting
of facts.7
32. In this context, the Disputes Chamber further refers to the importance of the processing of
personal data for archiving purposes in the public interest, scientific or
historical research or statistical purposes, as recognized in Recital 153 and Article 89 AVG. 8
The ECtHR has already confirmed that setting up and keeping online archives is part of
forms part of the right to freedom of expression and information as understood in Article 10
ECHR. The ECtHR emphasizes the importance of digital archives as the right to information
of the public is not limited to current events, and furthermore the information contained in this digital
9
archives is quickly accessible and often free. Considering the importance of digital archives, it has
ECHR noted that "it is not for the judicial authorities to rewrite history
5EHRM May 10, 2011, 48009/08, Mosley t. UK, § 112.
6EHRM May 10, 2011, 48009/08, Mosley t. UK, § 113.
7
ECtHR, 19 June 2003, 49017/99, Pedersen and Baadsgaard, §71.
8
See also Decision 139/2021 (https://www.dataprotectionauthority.be/publications/besluit-ten-gronde-nr.-139-
2021.pdf)
9
See also in this regard the above-mentioned judgment of the CJEU, 13 May 2014, C-131/12 , Google Spain; See, among others, ECtHR 27 November 2007,
42865/05, Timpul Info-Magazinet Anghel v. Moldova and ECtHR, 10 March 2009, 18897/91, Times Newspaper Limited v. United
Kingdom; ECtHR 28 June 2018, 60798/10 and 65599/10, M.L. andW.W. t. Germany, §90., Judgment on the merits 104/2022 - 9/12
by ordering that all traces of publications of which in the past have been brought before final judicial
verdict has been found to be an unjustified damage to individual reputation
forms, be removed from the public domain" 10. It follows a fortiori that only very
compelling reasons may justify direct interference in archived media
content. After all, retroactive adaptation of these digital press archives interferes with both
the right to expression and information as with the journalistic freedom mentioned above. It
The ECtHR therefore states that balancing all the interests at stake entails the risk
entails that the press refrain from keeping reports in its online archives or that it
omits individualized elements in reports that are likely to be the subject of a
11
make such a request”. Consequently, care must be taken with
review under Article 10 ECHR when measures or sanctions imposed on the press
the participation of the press in debates on matters of legitimate public interest
discourage. 12
33. As previously stated in Decision 139/2021, the Disputes Chamber takes into account the specific
nature of the archives, as well as with the safeguards for the data subject in the balancing of interests in
application of Article 17.3 a) of the GDPR.
34. As explained above, archives can only be used for very compelling reasons
(retroactively) adjusted. The Disputes Chamber is of the opinion that in the present case there is no
there is such a very urgent reason, and is based on criteria that the ECtHR in the judgment
14
Axel Springer t. Germany has elaborated and then in its further case law as a basis
used in the balancing of interests between the right to expressions of opinion information and the right
15
on the protection of personal data. The Disputes Chamber believes that there is no doubt about
the relevance of the article in the social debate, both for investors in similar
projects as well as for any future business partners of the complainant. The Disputes Chamber believes
that the complainant could reasonably have expected that the evolution of his project would be monitored
after the complainant appealed to the press to announce the launch of the project,
as well as later on when the project was taken over. According to the Disputes Chamber, there is also no
doubt as to the veracity of the contested article. As explained above, the
defendant corrected factual inaccuracies after publication of the article. The complainant alleges
10EHRM July 16, 2013, 33846/07, Węgrzynowski and Smolczewski, §65.
11
ECtHR June 28, 2018, 60798/10 and 65599/10, M.L. and W.W. t. Germany, §104.
12
ECtHR June 28, 2018, 60798/10 and 65599/10, M.L. and W.W. t. Germany, §104.
13
Decision 139/2021, §59 (https://www.dataprotectionauthority.be/publications/besluit-ten-gronde-nr.-139-2021.pdf)
14EHRM February 7, 2012, 39954/08, Axel Springer t. Germany, §§ 89-95.
15 namely: contribution to the social debate; reputation of the applicant; the applicant's prior conduct towards
the media; manner in which the information was obtained and its veracity, content, form and consequences of the publication, and the
impact of the imposed measure on the publisher. The ECtHR states in this regard that the above criteria apply
both at the time of publication and at the time of archival review, recognizing, however, that the relevance of this
criteria may change in specific circumstances or over time, Decision on the merits 104/2022 - 10/12
that the article is still incorrect because the wording used has a negative tenor
contain. As already set out, the journalist's choice of wording is part of the
journalistic freedom. It cannot be the intention that every article that can be regarded as critical
should be removed or modified. In addition, the article is only accessible
for subscribers of the press publisher, which means that the article is not freely available for everyone to consult. The
The Litigation Chamber argues that introducing such accessibility measures
of archives (and recent publications) is part of the provision of appropriate safeguards in the
meaning of Article 89 of the GDPR by the defendants. The Disputes Chamber also notes that
when entering the name of the complainant in a search engine, this article at issue is not necessarily
definition appears on the first or second page. If this were the case for the complainant,
in view of the algorithms of search engines, according to the Disputes Chamber there are other
measures that can meet the complainant's wishes, without affecting the integrity of
the online archives must be compromised.
35. In short, the data subject's desire to erase his past through the deletion or modification
of an archived article because he believes it would contain a negative tenor is not
sufficient to affect the integrity of the online archives.
36. Finally, the Disputes Chamber notes that it has taken cognizance of the Hurbain judgment of the
ECtHR in which the ECtHR ruled that an anonymization obligation imposed on a
press publisher was found to be in accordance with Article 10 ECHR. The Dispute Room
considers, however, that in the present case there are insufficient arguments to reach the same
to make a decision as there are decisive factual differences between the two
Affairs. For example, the Hurbain case concerned a fatal car accident in 1994 in which the complainant was involved
was, as a result of which the publication resulted in a virtual criminal record, which could have a negative
have for the complainant's professional activities as a doctor. The present case concerns the article de
takeover of a business project, which does not contain data of a criminal nature.
In addition, the article in the Hurbain case was published in 1994 and re-published after 20 years
brought to the fore in the context of road safety statistics, making it
article had no news value whatsoever according to the ECtHR. In the present case, it concerns a
article published four years ago that may be newsworthy for
future potential investors in collaboration with the complainant or in similar projects.
The article in question was also available online to everyone in the Hurbain case, so not
only for subscribers, as is the case in the present case. In the Hurbain case, the
concerned made the necessary efforts to stay away from the media attention both during and after
the moment of publication. As already stated above, this is not the case in the present case.
16
ECtHR June 22, 2021, 57292/16, Hurbain v. Belgium. The Disputes Chamber also points out that this case was settled on June 22, 2021
referred for consideration by the Grand Chamber.
17EHRM, 22 June 2021, 57292/16,Hurbain v. Belgium, §112., Judgment on the merits 104/2022 - 11/12
The complainant appealed to the media for the publicity at the launch and also at the
takeover.
37. In short, in view of the analysis of the above criteria, the Disputes Chamber rules that the
the defendant has rightly refused the request for erasure in accordance with Article
17.3.a) GDPR.
38. In the light of the foregoing and on the basis of all the elements in the file of which it is aware
and of the powers conferred on it by the legislature under Article 100, paragraph
1WOG, the Dispute Chamber consequently decided, for the reason set out above, the
to dismiss the complaint, in accordance with Article 100, paragraph 1, 1° WOG.
39. In the event of a dismissal, the Disputes Chamber must substantiate its decision step by step and:
- pronounce a technical dismissal if the file contains no or insufficient elements that belong to
could lead to a sanction or contain insufficient elements that could lead to a sanction;
- or declare a policy dismissal if, despite the presence of elements that lead to a
sanction, further investigation of the file does not deem it opportune in the light of
her priorities.
40. If there are several grounds for the dismissal (technical or policy dismissal, respectively),
the rejected grounds should be treated in order of importance.
41. In the present case, the Disputes Chamber decides to close the case without further action,
as the defendant rightly refused the erasure request
in accordance with Article 17.3.a) GDPR and thus no infringement of the GDPR can be identified. 18
III.Publication of the decision
42. Given the importance of transparency in the decision-making of the
Litigation Chamber, this decision will be published on the website of the
Data Protection Authority. It is not necessary, however, that the identification data
of the parties shall be published directly.
18
In this regard, see criterion A.2 in connection with technical dismissal in the memorandum "Dismissal Policy of the Disputes Chamber,
published on June 18, 2021 (available at: https://www.dataprotectionauthority.be/publications/sepotbeleid-van-de-
dispute chamber.pdf), decision on the merits 104/2022 - 12/12
FOR THESE REASONS,
the Disputes Chamber of the Data Protection Authority decides, after deliberation, to
Article 100, paragraph 1, 1° WOG to dismiss this complaint on technical grounds.
Under Article 108, § 1 WOG, an appeal may be lodged against this decision within a
period of thirty days, from the notification, to the Marktenhof, with the
Data Protection Authority as Defendant.
(Get). Hielke Hijmans
Chairman of the Disputes Chamber
