HURBAIN v. BELGIUM JUDGMENT
After stating ... that the dispute concerned ‘an ... aspect’ of the right to be forgotten
relating to ‘the possibility for an individual to request the erasure of data concerning
him or her, and more specifically data posted online, after a given period’, ‘[t]he aim
[being] no longer to prevent or punish the disclosure of past events, but to obtain the
removal of information available on the Internet’, the contested judgment found that,
by placing the impugned article online, ‘[the appellant] enabled [that] article ... to be
given prominence via the search engine of the newspaper’s website, which [was]
accessible free of charge. The effect [was] also multiplied significantly by the
development of the “crawling” software used by Google-type search engines’.
Thus, the contested judgment ruled lawfully that the online archiving of the article in
question amounted to a fresh disclosure of the respondent’s previous conviction that
was liable to infringe his right to be forgotten.
In adding, on the basis of factual remarks weighing the respondent’s right to be
forgotten against the appellant’s right to create historically accurate archives and the
public’s right to consult them, that ‘[the respondent] satisfie[d] the criteria for claiming
a right to be forgotten, and that keeping the article in question online without rendering
it anonymous, many years after the events it reported on, [was] liable to cause him
disproportionate harm when weighed against the benefits of strict observance of [the
appellant]’s right to freedom of expression’, and that ‘the conditions of lawfulness,
legitimacy and proportionality imposed by Article 10 § 2 of the Convention for the
Protection of Human Rights and Fundamental Freedoms in respect of any limitation of
freedom of expression [were] satisfied in the present case’, the contested judgment
provided legal justification for its ruling that the appellant, ‘by refusing, in the specific
context of the case and without reasonable cause, to accede to the request for the article
to be anonymised’, had committed a fault.
It therefore lawfully ordered him to ‘replace the respondent’s first name and surname
with the letter X in the ... version of the article dated ... featured on the website
www.lesoir.be and in any other database for which he [was] responsible’ and to pay
[the respondent] one euro in respect of non-pecuniary damage.”
III. IMPLEMENTATION OF THE JUDGMENT OF 25 SEPTEMBER 2014
39. On 25 November 2014 G. brought proceedings against the applicant
in the Liège Court of Appeal seeking an order for the applicant to pay a fine
for failing to comply with the judgment of 25 September 2014, which had
been served on the applicant on 7 November 2014. On 8 December 2014 the
applicant informed the Court of Appeal that the version of the article in the
online archives had been anonymised on 21 November 2014.
40. In a judgment of 19 March 2015 the Liège Court of Appeal dismissed
the request for it to impose a fine, finding that this was not justified since the
article had been anonymised in the meantime. However, the court noted, on
the basis of the documents in the file, that the applicant “ha[d] demonstrated
no readiness or resolve to implement the judgment”. It therefore ordered him
to pay the costs incurred by G. in seeking to obtain enforcement of the
judgment.
41. Following the anonymisation of the article a note was inserted beneath
the online version, under the heading “Full version”, referring to the relevant
judicial decision and to the possibility for anyone who so wished to consult
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