Droit à l'oubli; Droit à être oublié; Régime(s) juridique(s) en droit belge
[en] Unheard of until a few years ago, the “right to forget” is becoming a common expression in the legal world and beyond. It is important, however, to agree on what exactly this generic term covers. It groups together several rights based on different legal grounds.
Two sub-categories can be distinguished. The first covers all the legal instruments that allow the citizen to obtain or recover control of his personal data. This is what I term “droit à l’oubli”, literally “right to forget”. The legal basis for this comes from the legislation on the protection of personal data (such as, for example, the GDPR). The second sub-category is an expression of the right to private life. It comprises the tools that allow a person to refuse to be an object of information, either systemat- ically or on a specific occasion. It is “the right to be forgotten”. It is this second sub-category that I will mainly deal with.
The “right to be forgotten” limits the freedom of the press. It is therefore a question of balancing the interests protected by this fundamental right against the right to private life. The action that is likely to be brought with success after an infringement of the “right to be forgotten” is based on the common law of liability, namely Article 1382 of the Belgian Civil Code. Two specific conditions have to be met. The disputed facts have been lawfully published for the first time. This information must, then, be disseminated a second time, in a way that may be different from the original disclo- sure. If these preliminary conditions are met, the judge has several parameters at his disposal to assess the balance of the interests involved.