HURBAIN v. BELGIUM JUDGMENT
pursued a legitimate aim, namely the protection of the restaurant owner’s
reputation, and had been necessary. In arriving at that conclusion it took into
consideration the following criteria: the length of time for which the article
was kept online, the sensitiveness of the data and the gravity of the sanction
imposed. It therefore ruled that there had been no breach of the applicant’s
freedom of expression, especially since he had not actually been required to
remove the article from the website.
199. Thus, from the standpoint of the Convention, the “right to be
forgotten online” has been linked to Article 8, and more specifically to the
right to respect for one’s reputation, irrespective of what measures are sought
for that purpose (the removal or alteration of a newspaper article in the online
archives or the limitation of access to the article through de-indexing by a
news outlet). In the Court’s view, a claim of entitlement to be forgotten does
not amount to a self-standing right protected by the Convention and, to the
extent that it is covered by Article 8, can concern only certain situations and
items of information. In any event, the Court has not hitherto upheld any
measure removing or altering information published lawfully for journalistic
purposes and archived on the website of a news outlet.
(iii) The criteria to be applied by the Court
200. The question which the Court must address in the present case is
whether the decisions of the Belgian courts ordering the applicant to
anonymise the electronic version of the impugned article on the website of
the newspaper Le Soir, on grounds of the “right to be forgotten”, amounted
to a violation of freedom of expression under Article 10 of the Convention.
In that connection it will have to determine whether the anonymisation order
was based on relevant and sufficient reasons in the specific circumstances of
the present case and, in particular, whether it was proportionate to the
legitimate aim pursued.
201. Having dealt with numerous applications in which it was called upon
to examine the fair balance to be struck between freedom of expression and
various aspects of the right to respect for private life in cases concerning
initial publication, the Court has developed an extensive body of case-law on
the subject, establishing criteria relating to the balancing of these rights and
the Contracting States’ margin of appreciation in this context. In Couderc and
Hachette Filipacchi Associés (cited above, §§ 90-93), under Article 10 of the
Convention, the Court summarised the general principles in this regard as
follows:
“90. The choice of the means calculated to secure compliance with Article 8 of the
Convention in the sphere of the relations of individuals between themselves is in
principle a matter that falls within the Contracting States’ margin of appreciation,
whether the obligations on the State are positive or negative ... Likewise, under
Article 10 of the Convention, the Contracting States have a certain margin of
appreciation in assessing whether and to what extent an interference with the freedom
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