HURBAIN v. BELGIUM JUDGMENT – SEPARATE OPINIONS
the basis of Article 10, a (personal) right “to remember” on behalf of the
community as a whole.
D. The accessibility of the impugned article
24. Another significant factor in the present case, in my view, concerns
the fact that the anonymisation of the online version of the impugned article
does not affect access to the full version. I quote the Liège Court of Appeal
in this regard, as its findings are important: “No request was made for the
impugned article to be removed from the archives, but simply for the
electronic version to be rendered anonymous; the paper archives remain intact
and [the applicant] can still ensure the integrity of the original digital version”
(see paragraph 29 of the present judgment).
25. It is true that the operative part of the Liège Court of Appeal judgment,
regrettably, sows a seed of doubt, “[upholding] the first-instance judgment in
its entirety”. That judgment – given by the Neufchâteau Court of First
Instance – ordered the anonymisation of the version of the article featured on
the website www.lesoir.be, but also “in any other database for which [the
applicant] [was] responsible”.
Nevertheless, anyone reading the judgment of the Liège Court of Appeal
will be left in little doubt in this regard, as it refers throughout its reasoning
solely to the continued online availability of the article in non-anonymised
form. In particular, it states that “[t]he most effective means of protecting
[G.]’s privacy without interfering to a disproportionate extent with [the
applicant]’s freedom of expression is to anonymise the article on the website
of Le Soir by replacing [G.]’s first name and surname with the letter X”
(emphasis added). The judgment further states that “[t]here is of necessity a
causal link between [the applicant’s] wrongful decision to keep the article of
10 November 1994 online without anonymisation and the damage referred to
above” (emphasis added).
The fault found to have been committed under Article 1382 of the Civil
Code therefore consisted in keeping the article in question online without
anonymisation. It did not lie in the fact that the applicant kept the article in
non-anonymised form in all the databases for which he was responsible.
26. As to the accessibility of the article, it should not be overlooked that
the anonymisation complained of does not affect the possibility of searching
for the article in the online archives on a basis other than G.’s first name and
surname.
27. In this connection, can it be assumed that searches carried out on the
basis of a person’s name in the digital archives are for scientific or historical
purposes? That seems doubtful, although I do not consider it necessary to
dwell on this aspect.
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