By Dave McKay | July 16, 2022
Actually, It’s the Right to Request Erasure
The Belgian Data Protection Authority have upheld the rights of a media publisher, De Tijd, to refuse a data subject’s request for erasure. The item in question is a news article in the De Tijd’s online archive. The DPA said that in this case the publisher’s right to freedom of expression and information took precedence.
Background
The data subject was the former owner of an electric scooter business. In 2018 it was acquired by a third party.
De Tijd published an article about the data subject and his previous involvement with the scooter business. This article is in their online archives. The data subject asked De Tijd to anonymize the article, but their request was refused.
On 23 March 2021, the data subject submitted a request for mediation to the Belgian DPA. They claimed the negative connotations would have a detrimental effect on their career and professional standing. They had asked for some corrections to the article which had been made, but were still unhappy about the overall stance of the article, and the fact it had been indexed by search engines and would appear in web search results.
De Tijd maintained it was not obligated to remove or anonymize the article. They cited their right to freedom of expression, and maintained that the story was news in the public interest. As for the negative connotation, the story was factual. Any bias or critical tone falls under editorial freedom.
DPA Ruling
The DPA noted that the right to be forgotten (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)).
It went on to explain that that balance must be found between the freedom of expression of information and the right to protection of personal data.
However, the DPA agreed with the data subject that having the article surface in web searches may constitute a more serious interference with their right to privacy. But, that was a different matter and would need to be taken to the search engine companies by the data subject. The DPA could only adjudicate on what had been brought before them: the applicability of Article 17(1)(c) and its exception laid down in Article 17(3)(a).
In its summary, the Belgian DPA noted:
- Freedom of expression and journalistic liberty Article 10 ECHR) are important pillars in a democratic society.
- Specifically, online archives are of special importance because of their accessibility to the public.
- Only absolutely pressing reasons justify an intervention with fundamental rights. Just because an article adopts a critical stance or negative tone, that’s insufficient justification to compromise the integrity of online archives.
- A major factor was that the DPA found the article to be accurate and factual.
- The DPA concluded the processing was in line with the measures of Article 89 GDPR.
The DPA therefore held that the De Tijd’s refusal of the data subject’s request for erasure was lawful.