HURBAIN v. BELGIUM JUDGMENT
of expression protected by this provision is necessary ... However, this margin goes
hand in hand with European supervision, embracing both the legislation and the
decisions applying it, even those delivered by an independent court. In exercising its
supervisory function, the Court’s task is not to take the place of the national courts, but
rather to review, in the light of the case as a whole, whether the decisions they have
taken pursuant to their power of appreciation are compatible with the provisions of the
Convention relied on ...
91. In cases which require the right to respect for private life to be balanced against
the right to freedom of expression, the Court considers that the outcome of the
application should not, in theory, vary according to whether it has been lodged with the
Court under Article 8 of the Convention by the person who was the subject of the news
report, or under Article 10 by the publisher. Indeed, as a matter of principle these rights
deserve equal respect ... Accordingly, the margin of appreciation should in theory be
the same in both cases.
92. According to the Court’s established case-law, the test of ‘necessity in a
democratic society’ requires the Court to determine whether the interference
complained of corresponded to a ‘pressing social need’, whether it was proportionate
to the legitimate aim pursued and whether the reasons given by the national authorities
to justify it are relevant and sufficient ... The margin of appreciation left to the national
authorities in assessing whether such a ‘need’ exists and what measures should be
adopted to deal with it is not, however, unlimited but goes hand in hand with European
supervision by the Court, whose task it is to give a final ruling on whether a restriction
is reconcilable with freedom of expression as protected by Article 10. Where the
balancing exercise has been undertaken by the national authorities in conformity with
the criteria laid down in the Court’s case-law, the Court would require strong reasons
to substitute its view for that of the domestic courts ...”
202. However, the question arises whether, in view of the specific nature
of the present case, which lies in the fact that it concerns the electronic
archived version of an article rather than the original version, the criteria
hitherto employed by the Court in order to resolve a conflict between the
respective rights under Articles 10 and 8 of the Convention need to be
adjusted.
203. In this regard, in upholding the position adopted by the Belgian
courts and finding that there had been no violation of the applicant’s freedom
of expression in the present case, the Chamber referred to the established
criteria examined in cases relating to initial publication, as summarised in
Axel Springer AG (cited above, §§ 89-95). These are: the contribution to a
debate of public interest; whether the person concerned is well known; the
subject of the news report; the prior conduct of the person concerned; the way
in which the information was obtained and its veracity; the content, form and
consequences of the publication; and the severity of the measure imposed on
the applicant. The same criteria had been taken into account by the Court in
previous cases concerning requests for the alteration of content stored in a
digital press archive (see Fuchsmann, cited above, § 34, and M.L. and W.W.
v. Germany, cited above, § 96).
204. By contrast, in the recent case of Biancardi (cited above, §§ 57-71),
which concerned a request for the owner of an online newspaper to de-index
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