The publication of suspended sportsmen’s personal details is nullified by the Court of Arbitration

Publié le 22/03/2005 par Thierry Léonard, Wim Germonpré - 0 vues

The Flemish community may not any longer publish the names of sport practitioners who have been suspended on the basis of a violation against the Flemish doping regulations, on an official publicly available website. This has been decided by the Belgian Court of Arbitration in a judgment rendered on January 19, 2005. This publication of…

The Flemish community may not any longer publish the names of sport practitioners who have been suspended on the basis of a violation against the Flemish doping regulations, on an official publicly available website. This has been decided by the Belgian Court of Arbitration in a judgment rendered on January 19, 2005.

This publication of doping sinners on the website of the Flemish Doping line (www.dopinglijn.be) was part of the Flemish Decree of March 27, 1991 on the Medically Justified Practice of Sport, which was changed by the Decree of March 19, 2004 which entered an article 40, § 6, second clause: “The disciplinary suspensions of adult sportsmen will be published for the duration of the suspension on the website hereto published by the government and through the communication channels officially established by the sport federations. This publication comprises name, first name and date of birth of the sportsman, beginning and end of the suspension period and the sport discipline in which the offense was found” (free translation).

The objective behind this measure was the fact that the Flemish regulator, after questioning the different sport federations, found out that this publication through website allows the sport clubs to comply with the possibly issued injunction applicable in all sport disciplines, taking into account the level of organization of sport clubs in federations and leagues (Parl. St., Flemish Parliament, 2003-2004, n° 1954-I, p. 19 ; free translation).

The Court of Arbitration found that the publication of personal details in such a general way involves an interference with the right of respect of privacy as guaranteed by article 22 of the Belgian Constitution, article 8 of the European Convention on Human Rights and article 17 of the International Covenant on Civil and Political Rights. For a similar interference to be allowable, this interference has to be necessary to achieve a certain legitimate goal, which implies, among other things, that there has to be a reasonable connection of proportionality between the measure’s consequences for the concerned person and the society’s interests.

The Court of Arbitration here makes an interesting remark concerning the Belgian internal division of competence in the field of basic rights. Article 22 of the Belgian Constitution prescribes that only the federal legislator can decide in which cases and under which conditions the right of respect for privacy and family life can be restrained. However, this does not preclude that the decreeing body can adopt a regulation, in an affair specifically assigned to him, which interferes with the protection of privacy. But he has to respect the general federal minimum regulation, in this case the law of December 8, 1992 on Privacy Protection in relation to the Processing of Personal Data.

A restricted form of electronic publication in behalf of the supervisory officials and the responsible persons of the sport clubs can be esteemed to be necessary to guarantee the effective compliance with the sanctions being imposed on the sportsmen and serves a legitimate goal. Nevertheless, the by the decree prescribed dissemination of personal details on a non-secured and, as a result, publicly accessible website goes further than this goal requires. Such a publication does not only result into the fact that anybody can take cognizance of these data, even though it is useless for him, but it also makes it possible that the published details can be used for other purposes and be processed further, as a result of which they can still be spread after the sanctions are expired and the publication has disappeared from the website.

Because, on the one hand, the publication is not necessary to achieve the pursued legitimate goal, since this goal can be realized in a, for the persons concerned, less prejudicial way and, on the other hand, the consequences of the measure are disproportionate with this goal, the Court of Arbitration consequently finds that the disputed stipulation is infringing article 22 of the Belgian Constitution and the forenamed treaty provisions which have an analogue scope. Therefore, the Court of Arbitration nullifies in article 40, § 6, second clause of the Flemish Decree of March 27, 1991 on the medically justified practice of sport, the words “on the website hereto published by the government and”.

A less freedom restricting alternative does not seem to be so difficult to realize. The details can be put at the relevant person’s disposal by means of, for example, a website with restricted access or a subscription to an electronic newsletter. The Flemish government has, immediately after the judgment, chosen for this last option.

More info ?

Read the decision of the Court of Arbitration, available on our website.