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1. Februar 2022

February - Data protection, freedom of expression, journalism and the media – 5 von 5 Insights

The Paris Civil Court favors freedom of expression over data subject rights

Marc Schuler and Julie Dumontet look at a recent decision on the application of the right to be forgotten to press publishers in France.

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In a decision of June 30 2021, the Paris Civil Court (Tribunal Judiciaire) considered that the publisher of an online newspaper was not required to take down or anonymise an article relating to the criminal sentence imposed ten years ago on the former president of a well-known French sports club under Articles 17 and 21 GDPR (right to be forgotten and right to object).  

The right to data protection must be balanced with freedom of expression and information. The Court ruled that the processing of the club former president’s identification data as well as information regarding his previous criminal conviction was necessary and proportionate and in the general public interest.

What were the facts of the case?  

Back in 2009, Mr C, former president of a sports club, was convicted for various criminal offences, including misappropriation of assets and breach of trust. At that time, an article was published on the website of the French daily newspaper '20 minutes' reporting the case. This conviction was then partially overturned by the Versailles Appeal Court. Although guilt for most of the offences was confirmed, the Appeal Court overruled the initial decision regarding misappropriation of assets. Sanctions were further reduced and were not placed on Mr C’s criminal record. The article originally published by 20 minutes was not updated and remained available on its website.

In 2019, Mr C asked 20 minutes to take down the article or, at least to have it anonymised. He argued that the information provided in the article was outdated and not relevant to the public, as it did not refer to the appeal decision. Mr C claimed the article containing outdated sensitive information infringed his rights to privacy and to the protection of his personal data.

20 minutes did not take down or anonymise the article but included an update referring to the Appeal Court decision. Mr C filed his claim before the Paris civil court.

What were the grounds for the claim?

Mr C. relied on his right of erasure (Article 17 GDPR) and right to object (Article 21 GDPR) to request the withdrawal or anonymisation of the article.

Under Article 17 GDPR, data subjects are entitled to ask controllers to erase their personal data, in particular when the data is no longer necessary in relation to the purposes for which it was collected or otherwise processed, or where the personal data had been unlawfully processed.

Under Article 21 GDPR, data subjects can object to the processing of their personal data on grounds relating to their particular situation. In such situations, controllers can no longer process the personal data unless they can demonstrate compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subjects.

To support his claims, Mr C further relied on the European Court of Justice Google Spain decision on the right to be forgotten.  This established that the operator of a search engine must delist search results containing personal data of an individual including links to any webpage containing their personal data, subject to the conditions for the exercise of the data subjects’ rights being met Mr C argued that this case law should equally apply to press publishers.

What did the Court decide?

The Court rejected Mr C’s claims.

The Court considered that CJEU case law on search engines could not apply to press publishers. According to the Court, press publishers’ activity is at the very core of what freedom of expression is intended to protect. This  cannot be compared to the activity of a search engine, whose main function is not to publish information about a person, but to make it possible to identify all information available about that person and establish a profile of them.

The Court also noted that the GDPR does not create an absolute right to data protection.

According to the Court, press publishers should benefit from a special regime as their activity is essential for the preservation of freedom of expression and information. The rights granted to data subjects under the GDPR should not apply where the processing of personal data is necessary for the purpose of freedom of expression or, when complying with such rights would lead to an excessive restriction to the freedom of the press.

This finding is in line with the provisions of Article 85 GDPR which provides that the right to the protection of personal data must be reconciled with the right to freedom of expression and information, in particular where personal data is processed for journalistic purposes.

In this case, the Court found that mentioning the identity of the club former president as well as his criminal convictions were in the public interest..

The Court ruled that, even though the original court decision was issued ten years before, the subject matter of the article was still relevant as an illustration of the recurring issues regarding sport and money. In addition, the Court noted that Mr C was still an active public figure in the sports sector.

What is next?

The decision of the Paris Civil Court is in line with previous decisions of French courts issued before the GDPR came into force. French Courts tend to favor freedom of expression and information over right to data protection when it comes to the activity of press editors.

An appeal has however been filed against this specific decision.

To be continued…

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