HURBAIN v. BELGIUM JUDGMENT – SEPARATE OPINIONS
and its extent will depend on the degree of accessibility of the specific
information.
(b) If, owing to the existence of serious harm, measures are required to
protect the reputation or the rights of others, they must be aimed primarily at
limiting access to the original publication so as to lessen the impact on
freedom of expression, on the archives and hence on the “right to remember”.
This can be achieved, in particular, by means of delisting of the article by the
search engines. Only where this is not possible should retrospective alteration
of the archived content be considered, and then solely as a measure of last
resort.
(c) The national courts should therefore be particularly vigilant in
examining requests, grounded on the right to respect for private life, for
alteration of the electronic version of a lawful press article in the archives.
Consequently, they should take into account all possible alternatives so as to
be satisfied that no measures exist that would be less restrictive of freedom
of expression than alteration of the wording of the original article (for an
overview of such alternatives see paragraph 241 of the judgment). The idea
is not that the courts should impose such measures in breach of the disposition
principle applicable in civil proceedings. That has nothing to do with the
disposition principle, but the national courts should ascertain in their
proportionality assessment whether any such less restrictive measures exist
and, if necessary, reject the request from the person concerned to alter the
online archive.
15. In my view, the considerations outlined above should be applied to
the circumstances of the present case in the following manner (although I will
refrain from setting out the reasoning in too much detail in this separate
opinion).
(B) Existence of a pressing social need
16. As regards, firstly, the nature of the archived information, the Court,
in its recent case-law, has characterised data relating to criminal proceedings
as sensitive (see Biancardi v. Italy, no. 77419/16, § 67, 25 November 2021).
It has also noted that the approach to covering a given subject is a matter of
journalistic freedom (see Satakunnan Markkinapörssi Oy and Satamedia Oy
v. Finland [GC], no. 931/13, § 186, 27 June 2017, and M.L. and W.W.
v. Germany, cited above, § 105). In any event, in the case of press articles
about criminal proceedings, the inclusion of individualised information such
as the full name of the person concerned is an important aspect
(see Fuchsmann v. Germany, no. 71233/13, § 37, 19 October 2017).
17. The impugned article reported on a number of road-traffic accidents,
including the one caused by G. The facts were thus of a judicial nature and
were not particularly sensitive. G. did not provide evidence that he had
suffered serious harm, nor did the national courts demonstrate specifically
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