HURBAIN v. BELGIUM JUDGMENT – SEPARATE OPINIONS
That being said, it is not the continued online availability of the article that
is under discussion here, but solely the continued mention of G.’s first name
and surname in the publicly accessible digital archive. Consequently, the
issue is not whether the article, as such, is of contemporary or historical
interest, but rather whether the mention of G.’s identity is of such interest. In
that regard I have difficulty discerning how his identity is relevant to the
information contained in the article, especially twenty years after the events.
19. In this connection we know that in cases involving a classic conflict
between the rights guaranteed by Articles 8 and 10 of the Convention, the
Court usually gives precedence to the Article 8 rights where the publication
in question does not contribute to a debate of public interest and where the
persons concerned are not well known (see, in particular, Satakunnan
Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, 27 June
2017, and, conversely, Couderc and Hachette Filipacchi Associés, cited
above). Of course, this case-law does not concern digital press archives, but
the assessment criteria are also of relevance in the present case and, indeed,
are among the factors to be taken into consideration outlined in the judgment
(see paragraph 205).
20. As to the harm alleged by the parties, G. claimed to have suffered, in
his capacity as a doctor, as a result of the accessibility of the press archive
mentioning his name (to which access was completely free at the time). The
Liège Court of Appeal sought to describe the harm suffered by G. on account
of the continued online availability of the article twenty years after the events,
and weighed this up against the harm alleged by the applicant. Referring to
the various letters sent to the applicant by G. giving reasons for his request, it
noted that the request for anonymisation had been “based on valid grounds
relating to [G.]’s professional and family circumstances”.
G. had been rehabilitated in 2006, with the result that his conviction was
erased from the criminal records. However, the fact that the article was kept
online and disclosed his identity created a “virtual criminal record” which
undermined his efforts to reintegrate.
To my mind, it has not been demonstrated before the Court that the damage
sustained by the applicant as a result of the anonymisation of the digital
version of the article in the online archives was greater than the damage
alleged by G. if he were to continue to be identified. In truth, it is not clear to
me how replacing G.’s first name and surname with the letter X could have
caused serious harm to the applicant.
21. It is true that, after the Liège Court of Appeal judgment, the Court
found in its judgment of 28 June 2018 in M.L. and W.W. v. Germany (cited
above) that the German courts’ refusal of the requests to prohibit the
publication of personal data featuring on a radio station website and in a
weekly magazine and a daily newspaper did not amount to a violation of
Article 8 of the Convention. However, a number of important factors
distinguish that case from the present one. Firstly, the judicial facts
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