HURBAIN v. BELGIUM JUDGMENT
measures which meet this twofold objective can be ordered, even if this might
involve dismissing the action of the person making the request.
243. For its part, in previous cases concerning the alteration of digital
press archives, the Court assessed the nature of the measures taken at national
level against the broader background of the various alternative measures
available. Thus, it took into consideration the fact that the applicants had not
taken any steps to compel the search engine operators to make the information
concerning the applicants less easy to find (see Fuchsmann, cited above, § 53,
and M.L. and W.W. v. Germany, cited above, § 114) or to request that the
information about which they complained be rectified (see Węgrzynowski
and Smolczewski, cited above, §§ 66-67). Furthermore, in the recent case of
Biancardi (cited above, § 70), in finding that the de-indexing measure under
consideration was proportionate from the standpoint of Article 10 of the
Convention, the Court observed that there had been no question of requiring
the newspaper to remove the impugned article from its digital archives.
244. In the present case, in his requests to the newspaper Le Soir and the
Council for Journalistic Ethics, and subsequently before the courts, G. argued
that if a search was carried out based on his first name and surname using the
search engine of Le Soir or on Google, the article in question appeared among
the first results, a situation which had an impact on his private and
professional life. Although G.’s chief concern was the fact that the article was
displayed following Internet searches based on his first name and surname
carried out via search engines, he did not seek to defend his interests through
an action against the operators of those search engines, but instead brought
an action against the applicant. He sought primarily the anonymisation of the
article and, in the alternative, the de-indexing of the article in the newspaper’s
internal search engine. As a third-party intervener in the present case before
the Court, G. explained his choice by the fact that there were several search
engines on the market and that the state of the technology at the time of his
action suggested that separate noindex tags would be needed for each search
engine, a situation which in his view left the effectiveness of that method
open to doubt (see paragraph 161 above). It is against this specific
background that the Court must examine whether – and, if so, to what extent
– the national courts assessed the weight of the order to anonymise the article
in question.
245. Firstly, they examined the applicant’s argument that a balance could
be achieved between the rights at stake by recognising a right to rectification
or communication, that is, by the addition of further information to the article
in question. The Court of Appeal considered that technique inappropriate in
the present case as it would allow the stigmatising effect of the serious
offences committed by G., and of the sentence he had already served, to
persist indefinitely and would render the rehabilitation order in his favour
meaningless (see paragraph 30 above).
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