HURBAIN v. BELGIUM JUDGMENT
dependency) had caused to their personal and professional reputation. The
court therefore judged that damage to be disproportionate to the limited
current interest in the news report. Accordingly, de-indexing the article in
question on the newspaper’s internal search engine so as to exclude it from a
search using the names of the persons concerned had been an appropriate,
necessary and proportionate measure.
112. The Constitutional Court added that, in any event, the information
could be located by means of a thematic, time-based or geographical search
or any other kind of search for journalistic purposes. Furthermore, following
de-indexing the information continued to be available in print and in digital
form, as the court-imposed restriction related solely to a specific means of
accessing it. The proportionality of the measure was therefore ensured. In
those circumstances, altering the content of the information by removing the
names or rendering it anonymous, which would entail more serious
interference with freedom of the press than simply limiting the dissemination
of the information, was no longer necessary.
E. Case-law of the German Federal Constitutional Court
(Bundesverfassungsgericht) and the Federal Court of Justice
(Bundesgerichtshof)
1. Federal Constitutional Court judgment 1 BvR 16/13 of 6 November
2019 (“Right to be forgotten I”)
113. In this first judgment, the Federal Constitutional Court examined the
scope and content of the “right to be forgotten” in the context of a dispute
between the complainant and a media outlet. The case originated in an action
seeking to prohibit the defendant from mentioning the complainant’s name in
reports on the offence (murder) which the latter had committed and of which
he had been convicted in 1982. The three articles dealing with the case, which
were published in the print edition of the magazine Der Spiegel in 1982
and 1983 and which referred to the complainant by name, had been available
in the defendant’s online archives free of charge and without access
restrictions since 1999. When the complainant’s name was entered into one
of the most commonly used Internet search engines, the articles in question
were listed among the top search results. The complainant had first become
aware of this in 2009, seven years after his release. The Federal Court of
Justice had rejected the action, taking the view that the general public had a
legitimate interest in obtaining information on significant events of
contemporary history – such as the complainant’s murder trial, which was
inextricably linked to his name and person – by accessing the unaltered
original news reports.
114. The Federal Constitutional Court held that the standard of review
under constitutional law in respect of protection against possible breaches of
fundamental rights stemming from the dissemination of articles and
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