French top court: naming person in article on criminal conviction may stand

A man sought an order requiring news website 20 Minutes France to remove an article about him, or alternatively to anonymise it by deleting his name, or, as a further alternative, to have it de-indexed from search engines. The article referred to criminal convictions. The Paris Court of Appeal dismissed all claims and the man appealed to the Cour de cassation on three grounds.

The first ground argued that the Court of Appeal had reversed the burden of proof. According to the appellant, the right to be forgotten (droit à l'oubli) applies in principle to data on criminal convictions, and an exception is only permitted where strictly necessary to protect freedom of expression. By requiring him to prove the necessity of removal, the lower court allegedly misallocated the burden of proof.

The Cour de cassation rejected this argument. It reiterated that freedom of expression (Article 10 ECHR) and the right to respect for private life (Article 8 ECHR and Article 9 of the Civil Code) carry equal weight. Where these rights conflict, the court must weigh them concretely against each other and favour the solution that best protects the most legitimate interest. There is thus no automatic presumption in favour of privacy from which departure is only allowed by exception; it is a case-specific balancing exercise, without either party bearing a fixed burden of proof to win that balance.

The court also referred to the criteria set out in the European Court of Human Rights judgment Hurbain v. Belgium, including the nature of the archived information, time elapsed, its ongoing relevance, the notoriety and conduct of the person concerned, the negative effects of continued online availability, the accessibility of the archive, and the impact on press freedom. The appellant argued that the Court of Appeal wrongly assessed his notoriety based on evidence from 2008 and 2016 rather than at the time of his request in 2019, and had failed to examine the accessibility of the archive.

The Cour de cassation held that the Court of Appeal had indeed carried out a genuine, concrete balancing exercise. It had found that the public still had an interest in the article, that mentioning the name was an essential element of the information, and that identifying details and references to convictions fell within the right to information and press freedom. On that basis, the refusal to anonymise or remove the article was legally sound. The third ground was dismissed without further reasoning as manifestly incapable of leading to reversal. The appellant was ordered to pay costs and 3,000 euros to the opposing party.