Right to be forgotten for old criminal convictions: a Luxembourg perspective based on a recent ruling

Jean-Luc Putz

Arendt & Medernach SA, Luxembourg

Jean-luc.putz@arendt.com

In a December 2024 ruling,[1] the Court of Appeal of Luxembourg decided whether a person convicted of a criminal offence could demand the press to stop publishing their name and image in relation to a past case. This case illustrates the challenge of balancing two fundamental rights: freedom of expression and press, and the protection of reputation and right to privacy. The plaintiff, a person in a public position, was involved in a widely covered legal case many years ago. Despite the time passed, media coverage continued including reports with identifying details about the individual.[2]

The right to erasure under the General Data Protection Regulation (GDPR) 

The concept of ‘right to be forgotten’ (droit à l’oubli) usually refers to rules concerning personal data. The European GDPR Article 17 enshrines the right to erasure of personal data under certain circumstances, particularly when the personal data is no longer necessary for the purposes for which it was collected or processed.

Luxembourg case law based on Article 17 of the GDPR is rare.[3]

In a noteworthy 2021 decision,[4] the Court of Appeal adopted a restrictive definition of the right to be forgotten in a case involving a request directed against the commercial register to remove two filings mentioning a past bankruptcy, on the grounds that – after appeal – no bankruptcy had actually been maintained. The ruling stated that there is no ‘general principle of law that should be applied more broadly than in the specific context where it is legally or regulatorily enshrined, and that should prevail over the legitimate right of third parties to information.’

The right to erasure was also invoked in a case involving a Luxembourg company and its CEO against a press company and a journalist after an article published online linked them to fraudulent activities in Greece. According to the plaintiffs, the article was erroneous and harmed their reputation, especially since no legal action had been taken against them. They requested the removal of the article, still accessible online years after the event, as well as the deletion of any mention of their names and compensation for moral damages, particularly based on Article 17 of the GDPR. The Court rejected these claims, applying the exception to the right to erasure under Article 17(3) of the GDPR when data processing is necessary for the exercise of the right to freedom of expression and information. According to the Court, the identification as the company’s CEO at the time of the events fell within the public domain and did not constitute strictly private data. Therefore, there was no disproportionate infringement on the right to privacy.[5]

The right to be forgotten in criminal law

Long before appearing in data protection regulations, the right to be forgotten already existed in criminal procedure. It is characterised in various ways, particularly by the fact that criminal records are not permanent but are removed after a certain period of time.

The term ‘right to be forgotten’ only appears sporadically in our national case law. It can be derived from procedural principles:

• Dismissed facts. The issue of the impact of a dismissal (no case to answer; non-lieu) was also discussed in another case decided in 2023 involving the rape of minors, even though the term ‘right to be forgotten’ was not explicitly used. In this trial, the investigating chamber had decided on a dismissal regarding certain victims, while retaining sufficient charges to justify the defendant’s referral to a trial court. A question of admissibility of evidence then arose: could the statements of those victims affected by the dismissal be considered for the non-dismissed facts? The Court of Appeal responded that in the presence of a dismissal relating to part of the case, the trial judge could not base their decision on such facts.[6]
• Time-barred facts. A similar decision was made regarding the impact of the statute of limitations. In a case involving assault and battery, illegal detention and rape, the Court of Appeal issued a reminder that the statute of limitations is a way of extinguishing prosecution. Indeed, ‘it is the forgetting of the offense due to the passage of a certain period of time that leads to the inadmissibility of prosecution’. Thus, the statute of limitations has the effect of erasing the criminal nature, or rather the criminal qualification of the act, removing any illicit character from the act.[7] Consequently, the time-barred facts cannot be taken into consideration, even in an overall assessment or to describe the general context.

These precedents protect the presumption of innocence. As soon as a procedure ends with a dismissal or the facts are time-barred, the elements of the judicial investigation, notably by the trial judge or an expert, can no longer be considered in any way. They just do not ‘exist’ any longer in court.

The right to be forgotten in the media

Let us now turn to the ruling of the Court of Appeal that sparked our interest. It addresses the right to be forgotten in the media, and to our knowledge, it is the first of its kind in Luxembourg.[8]

The case concerns the former president of a trade union organisation from 1985 to 2002, against whom charges were brought for forgery, abuse of trust, fraud and theft. The case involved several million ‘Luxembourg Francs’ (the Euro banknotes were introduced in 2002) and hundreds of victims. The individual had confessed and was sentenced in 2007 for various offences to a prison sentence of six years, with a two-year suspended sentence.

At the time, Luxembourgish media, particularly television, covered the criminal trial.

In 2016, on the occasion of the 15th anniversary of the case, the individual’s lawyer was contacted by a journalist about a proposed TV show and a request for an interview. The lawyer opposed the interview, but the television editorial team responded that they could not comply with such a request because it was part of their mission to inform and use existing documents and statements from the case file.

A TV program was broadcast in 2018, followed by a radio show in 2022. In the meantime, the individual filed a legal request in 2020 to prohibit the media outlet ‘from mentioning the name and publishing the image of the claimant on its TV broadcasts, radio programs, and websites in connection with its activities related to […], under penalty of a fine’.

The first judges referred to the case law of the European Court of Human Rights (ECtHR) to conclude that it was necessary to ‘balance’ two rights: the right to privacy and freedom of expression, ‘depending on the interests at stake, and to prioritize the solution that most protects the most legitimate interest’. Thus, the claimant’s request was granted in a ruling dated 1 December 2022, as it was primarily the event itself that should interest the public. In this context, adding the name of the convicted person, which does not fall within the public sphere, would not contribute any valuable information but would aim to discredit the person and cause disproportionate suffering.

Relying on the idea that this is one of the ‘most significant and striking criminal cases in contemporary Luxembourgish judicial history’, the media outlet appealed. It argued that such censorship could deter journalists from contributing to public discussions on issues affecting society.

As for the district court, it was the Court of Appeal’s role to balance freedom of expression and the right to private life. To make its decision, the Court of Appeal primarily relied on Articles 8 and 10 of the European Convention on Human Rights (ECHR) and referred to Luxembourg’s law of 11 August 1982, on the protection of privacy, particularly its Article 1, which allows judges to order measures such as sequestration or seizure to prevent or cease violations of privacy.

The Court of Appeal upheld the judgment in its entirety. It explained that consideration had to be given to the contribution of the publication to a debate of general interest, the notoriety of the person concerned, their previous behaviour, the content, the form and the impact of the publication to assess whether a restriction on press freedom was justified because it pursued a legitimate goal and was proportionate.

The judges considered that the subject related to an event in contemporary judicial history and ‘therefore contributes to a debate of general interest’.

However, the Court of Appeal found that the dissemination of the image and the publication of the name and surname were not necessary to achieve the goal of information. Indeed, the passage of time affects this issue. Also, a person’s notoriety must be assessed at the time the request for protection is made. In this case, the facts occurred more than 20 years ago, so they no longer hold any relevance to current affairs. The ruling explicitly refers here to a ‘kind of right to be forgotten’ that the convicted person can claim, especially since he has served his sentence and that he is retired and no longer holds any public position.

Finally, the Court of Appeal analysed the impact on privacy and social reputation. It noted that the mention of the name and publication of images would necessarily expose the individual to their criminal past, despite the fact that time had passed, ‘and while a convicted person should legitimately be able to regain their place in society after serving their sentence’.

Ultimately, the interest in revealing the name was deemed disproportionate and thus, a right to anonymise the name and image was recognised.

To defend itself against criticism and to avoid setting an unfavourable precedent for freedom of expression, the Court of Appeal emphasised that the media outlet could still fulfil its mission to inform a wide audience about the case and its judicial outcomes. Indeed, the limitation concerning the image and name would not render the information irrelevant. Furthermore, there was no request to remove past publications. Journalistic tasks would thus, according to the Court, not be materially affected by the imposed restriction.

Conclusion

This case highlights the inherent difficulty in any attempt to balance two fundamental rights of equal normative value. While freedom of expression remains an essential pillar of any democratic society, it cannot be exercised without limits when it excessively infringes upon the reputation and privacy of others, particularly when the reported facts are ancient, and the identification of the person concerned no longer holds substantial informational value.

The Court of Appeal’s decision thus establishes a right to anonymisation within the framework of the right to be forgotten, as long as the person in question no longer falls within the public sphere and their identity is no longer of interest to public debate.

This ruling also illustrates the key role of the judge in the in concreto assessment of the circumstances surrounding the disputed publication, considering the historical context and the evolution of the status of the person targeted.

However, not every case can end up in court. Ultimately, it is up to each journalist and editorial team to work on a case-by-case basis balancing and considering the interests of the individuals identified in their articles and contributions. This is not an easy task, and journalists can never predict whether their article might be prohibited or whether its removal might be ordered, with potential fines or even damages at stake. This aspect of the judicial solution could, in practice, constitute a real constraint on journalistic freedom.

In Luxembourg, the media involved in the affair strongly contested the decision, and it is not excluded that other bodies will be involved, in particular, the ECtHR. Other Luxembourg media have joined the cause, denouncing an attack on press freedom.

In the end, the plaintiff who had applied for his ‘right to be forgotten’ ended up with the opposite result. As a result of his legal action, the case received new public attention; apparently, it even reached the IBA’s website. A television and radio programme in the small Grand Duchy of Luxembourg would probably have had less impact than a press lawsuit. And so, in the end, it is not the journalist but the lawyer who is faced with the dilemma of whether or not to advise his client to take legal action.