HURBAIN v. BELGIUM JUDGMENT – SEPARATE OPINIONS
E. Should alternative means have been given precedence in the present
case?
28. Lastly, the present judgment considers some alternatives to the
anonymisation order complained of (see paragraphs 240 to 254 of the
judgment). This issue cannot be dealt with in a theoretical manner. It must be
addressed in the light of the actual and specific context of the dispute brought
before the domestic courts, taking into account the facts which they were
called on to examine, the requests made before them by the parties and their
own powers.
29. Thus, instead of focusing on the applicant, should G. have directed his
complaint against the search engines? I hear the argument that in a case such
as the present one priority should be given to taking action against the search
engine operators3. However, there is no need to discuss this issue since we
learn from the case file that the applicant himself contacted Google Belgium
on three occasions (by letters of 29 December 2010, and 24 January and
23 February 2011) prior to the commencement of the domestic court
proceedings, without success (see paragraph 16 of the present judgment).
G. therefore had good grounds for believing that a request for delisting was
bound to fail.
30. The applicant’s representatives argued before the Court that another
alternative to anonymisation existed, in the form of the de-indexing of the
article, and stressed that this alternative had not been considered by the
Belgian courts although it was less detrimental to freedom of the press than
anonymisation. However, it must be observed that the applicant had opposed
de-indexing in the domestic court proceedings and made no such request
before the Court of Appeal, despite being the appellant in those proceedings.
Hence, I do not see how the Court of Appeal can be criticised for not applying
a measure which the applicant had deemed not to be appropriate and which
had not been requested in the proceedings before it.
F.
Conclusion
31. In view of all the foregoing, I agreed with the majority of my
colleagues that there had been no “strong reasons” (see paragraph 11 above)
permitting the Court to substitute its own view for that of the domestic courts
in balancing the rights guaranteed by Articles 8 and 10 of the Convention in
the present case.
This still leaves the question as to which ones exactly? Only Google or also others? And if
so, which others?
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