Recently, my host notified me a recommended he had received: the manager of a company whose name appeared in a comment on my blog wanted to see his name deleted the visa of the law and freedom.
A suppression imposed by the data-processing law and freedom?
Principles laid down in article 40 LIL
My first instinct was: " yes ... this person has the right to ask for it! Delete without further delay his name comments of my blog ... ».
Indeed, the computer law and freedom (Law No 78/17, Article 40) provides for a clearing mechanism known to any controller:
Any natural person justifying his identity may require the controller of a treatment whether, as the case may be, rectified, completed, updated, locked or erased the personal data concerning him, [...]
But did not I react too fast?
Indeed, if such a right of cancellation existed without restriction, it would be possible for François Hollande to ask the deletion of his name from any article mentioning the President of the Republic ... That would be stupid, right?
Is an article mentioning a name a processing of personal data?
First of all, we can ask ourselves whether an article mentioning the name of a person should be interpreted as a treatment of personal data.
The CJEU responded in the affirmative to this question by emphasizing the broad character of the interpretation that should beCJUE C101 / 01 of 6 November 2003point 25).
From then on, my first reflex was the good one ... the LIL seems to apply.
Limitations of article 40 LIL
As you can see, I (have) voluntarily truncated theArticle 40 of Law No 78/17.
I truncated it, because the rest of the article is less known (in any case - mea culpa - I did not know him).
TheArticle 40 of Law No 78/17 actually reads as follows:
Any natural person justifying his identity may require the controller to correct, supplement, update, lock or erase personal data concerning him, depending on the case, that are inaccurate, incomplete, equivocal, out of date, or whose collection, use, disclosure or retention is prohibited.
Therefore, it is quite possible to Do not delete personal data, even at the request of the person concerned, under certain conditions.
By and large, the right to delete does not apply if:
- the data are accurate and
- if the collection and the use made of it is not prohibited.
In this case…
In the case that interested me here, the manager of a company complained about the mention of his name next to his company in one of the comments of my blog (sic. You forgot about Ms. Y's company X in your list").
After verification, it seems:
- that this information is correct (Mrs Y is indeed the manager of company X) and
- the collection / use of this information is authorized (Article 7 of Law 78/17, 5 °) since it is a public information (which can be found on societe.com) and whose advertising is directed at the legitimate interest of public information (publicity desired by the legislator).
Of course, it is necessary to weigh the legitimate interest of the commentator wishing to give his opinion (freedom of expression) and to warn the public with the interest of the manager not to be questioned in a gratuitous way (if this is the case ...).
Limitations of article 67 LIL
In order to close the debate, the LIL states that the requests for deletion of theArticle 40 of Law No 78/17 as part of' " literary and artistic expression (Pompously called here " blog article" ) Not Applicable.
Therefore, any request to delete a name in an article based exclusively on theArticle 40 of Law No 78/17 has no reason to succeed (except right-to-forget case mentioned below).
Right to be forgotten
Of course, even if, at the time of writing the article or the commentary, the data processing could be lawful, it is possible that, over time, it becomes incompatible with the original purposes (decision of the CJEU C-131/12 of May 13, 2014, point 95 and Article 6 of Law No 78/17): here, the information of the public.
Thus, if the information published in the article becomes false, the person mentioned in the commentary may ask that his right to be forgotten (enshrined in the decision of the CJEU C-131/12 of May 13, 2014) be respected.
To support the request, the person mentioned should provide the elements that enable the site owner to verify the obsolescence of the information. The evaluation of these elements is left to the appreciation of the site owner who can then accept or refuse this right to be forgotten.
Can a deletion still be desirable?
The injury is (article 29 of the law on the freedom of the press of July 29, 1881):
Any offensive expression, terms of contempt or invective that does not contain the imputation of any fact is an insult.
For example, " Ms. X is a bitch and a sow ».
Unlike defamation (see below), the insult is not based on no factthere is no question of proving the veracity of the alleged abusive remarks.
Case of comments
However, it should be remembered that the owner of a site is not responsible for the comments left on his blog unless:
- he knew of them or when he was warned, he did not act promptly to suppress them (C. Cass. crim, n ° 10-88825, October 30, 2012 and article 93-3 of the law n ° 82-652 of July 29, 1982);
- the owner of the site regularly checks the comments or moderates them actively (therefore, he is necessarily aware of comments, see above, C. Cass. crim, n ° 11-88562, October 30, 2012 and article 93-3 of the law n ° 82-652 of July 29, 1982).
Press offense and prescription
The insult is a press offense, subject to the regime of the Law on the Freedom of the Press of July 29, 1881.
The insult must be pursued by the insulted person within 3 months from the first publication (article 65 of the law on the freedom of the press of July 29, 1881).
Defamation is (article 29 of the law on the freedom of the press of July 29, 1881):
Any allegation or imputation of an act that offends the honor or consideration of the person or body to which the act is imputed is defamation.
It is therefore necessary to impute a fact to a person.
For example, "Mr. X spades in the crates of the town hall ».
Nevertheless, if the imputed fact is true (exception of truth), defamation will not be constituted (Article 35 of the Law on the Freedom of the Press of July 29, 1881). Alternatively, it is possible to prove good faith (ie show that one did not seek directly to harm the person defamed, that was measured in the remarks and that one acted without personal animosity).
Case of comments
It is possible to draw the same conclusions for defamation as for public insult.
Press offense and prescription
Defamation is a press offense, subject to the regime of the Law on the Freedom of the Press of July 29, 1881.
Defamation must be pursued by the person defamed within 3 months from the first publication (article 65 of the law on the freedom of the press of July 29, 1881).
Of course, even if the two cases are the most common, there may be other offenses that may motivate you to delete a comment:
- invasion of privacy ;
- Racist Thoughts ;
Case of comments
For the comments, the legal regime is apparently different for offenses which are not related to a press offense mentioned above (thearticle 93-3 of the law n ° 82-652 of July 29, 1982 is not applicable).
It is possible that the LCEN is then applicable by considering the owner of the site as hosting comments of its visitors. From then on, theArticle 6 of Law No. 2004-575 of 21 June 2004 on Confidence in the Digital Economy (paragraph 5) provides that the owner of the site sees his liability only when he has knowledge, including:
- the description of the facts in dispute and their precise location;
- reasons for which the content must be removed (including the mention of legal provisions).