HURBAIN v. BELGIUM JUDGMENT – SEPARATE OPINIONS
of their judgment to the facts of the present case by referring to the continued
existence of the paper archives, overlook the reality described above
(see paragraphs 7-8) and refrain from addressing the systemic issue.
27. Lastly, the chilling effect on freedom of the press stemming from a
requirement for a publisher to anonymise a lawful article cannot be ignored
(see paragraph 5 above; see also, in this context, the position of the sixteen
third-party interveners, summarised in paragraph 165 of the judgment).
Indeed, an obligation to review at a later stage the lawfulness of keeping an
article online following a request from a person claiming to be a victim of the
situation entails the risk, inter alia, that the press may refrain in future from
keeping reports in its online archives or that it will omit individualised
elements in articles that are likely to be the subject of such a request at a later
stage (see M.L. and W.W. v. Germany, cited above, § 104). This would be
detrimental to press freedom as a whole and thus to the “right to remember”.
28. Although the majority refer to the risk of a chilling effect in the
principles of the judgment (see paragraph 209), this vital element does not
appear to have played a meaningful role in the application of the principles to
the case at hand (see paragraph 254 of the judgment). By opting merely to
assess the impact on the newspaper Le Soir, the majority omit to draw the
necessary and coherent inferences and take no account whatsoever of the
potential impact on other press articles and on the functioning of the media in
general.
29. In my view, in the light of the foregoing considerations, the
anonymisation order made by the domestic courts in the present case likewise
did not satisfy the proportionality requirement under Article 10 of the
Convention.
III. Conclusion
30. In view of the factors analysed above – the absence of a pressing social
need justifying the interference with freedom of expression and the
non-fulfilment of the proportionality requirement – I conclude that the order
to anonymise the electronic version of the impugned article on the
newspaper’s website was not “necessary in a democratic society” and that,
accordingly, there has been a violation of Article 10 of the Convention.
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