HURBAIN v. BELGIUM JUDGMENT
complained of the fact that when her name was entered in a search engine,
one of the results that was displayed contained a link to the transcript of a
television broadcast which had been uploaded to the online archives in 2010.
In that broadcast the complainant, who was mentioned by name, was accused
of unfairly treating an employee who had been dismissed. As the dispute was
governed by legislation that was fully harmonised under EU law, the Federal
Constitutional Court applied the Charter of Fundamental Rights of the
European Union.
123. The court held that where the persons concerned requested a search
engine operator to refrain from referencing and displaying a link to certain
content on the Internet, the balancing exercise to be performed in such cases
had to take into account not only the personality rights of the individuals
concerned (Articles 7 and 8 of the Charter) but also, in the context of search
engine operators’ freedom to conduct a business (Article 16 of the Charter),
the fundamental rights of the content providers concerned as well as Internet
users’ interest in obtaining information.
124. In so far as a prohibition on the display of certain search results was
ordered on the basis of an examination of the specific content of an online
publication, and the content provider was thus deprived of an important
platform for disseminating the content that would otherwise be available to
it, this constituted a restriction of the content provider’s freedom of
expression (Article 11 of the Charter). However, the Federal Constitutional
Court specified that the search engine operator could not invoke Article 11 of
the Charter in relation to the search results displayed by its engine, as those
search services were not aimed at disseminating specific opinions. Observing
that the CJEU required the interest of the general public in access to
information to be taken into account as a manifestation of the right to free
information guaranteed by Article 11 of the Charter, the court added that the
role of the press in a democratic society also had to be taken into
consideration. However, at issue in this regard were not the individual users’
rights, deriving from Article 11 of the Charter, to access information on the
specific website in question, but rather freedom of information as a principle
to be weighed in the balance when restricting the rights guaranteed by
Article 16 of the Charter.
125. The Federal Constitutional Court also noted that the weight of the
search engine operator’s economic interests by itself was generally not
sufficient, in the context of the balancing exercise, to justify restricting the
data subjects’ claim for protection. Greater weight was to be accorded to the
interest of the public in obtaining information and, especially, to the
fundamental rights of third parties. Accordingly, it could not be presumed in
the case at hand – in contrast to certain cases determined by the CJEU, albeit
in circumstances that differed from those in the present case – that the general
right of personality should take precedence. On the contrary, the competing
fundamental rights had to be balanced on an equal basis. Just as individuals
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