Belgian Court of Cassation balances right to privacy with right to information
In a recent judgement of 18 October 2022, the Belgian Court of Cassation has weighed the fundamental right to privacy against the equally fundamental right to information and freedom of expression. The Court decided that in the present case, a news reporter was allowed to secretly film and publish footage of city council members attending a non-public birthday party of a non-public figure, considering that this related to a matter of public importance and considering the limited and public nature of the data.
In a recent judgement of 18 October 2022, the Belgian Court of Cassation has weighed the fundamental right to privacy against the equally fundamental right to information and freedom of expression.
The underlying facts related to a news reporter and editor-in-chief who were investigating the integrity of the Antwerp city council in relation to several controversial real estate projects. The news reporter secretly filmed several members of the Antwerp city council attending a (non-public) birthday party of a construction promotor, at the (public) entrance of a restaurant while greeting the host. The camera footage was subsequently published on the news site, while mentioning the names and roles of the city council's members.
While the host of the party could not be considered as a public figure as such, the Court of Cassation nevertheless held that the attendance of the city council's members to the birthday party and the alleged links between the city council and the construction company could be considered as a matter of public importance, especially in light of the controversial nature of the real estate projects. After having reiterated the criteria put forward by the ECtHR for striking a balance between the rights at stake and after having confirmed the importance of the “reasonable privacy expectations", the Court of Cassation finally considered that in the present case the right to privacy did not prevail over the right to information. Decisive in this respect were the limited and public character of the data processed. The news reporter and, in addition, the editor-in-chief could therefore lawfully base the processing of personal data on the ground of “legitimate interest" under data protection legislation.