HURBAIN v. BELGIUM JUDGMENT
246. Secondly, with regard to delisting by search engines, it is apparent
from the documents in the file that the applicant argued before the Court of
Appeal that the search engines alone were competent to deal with G.’s request
and that the latter had erroneously directed his action against the applicant.
The applicant added that the legal department of Le Soir had in fact contacted
Google with a view to delisting but had received no reply. However, that
argument was dismissed by the Court of Appeal, which observed that the
indexing of the article by the search engines was only possible because the
article was present in the newspaper’s database in non-anonymised form and
without any noindex tag. In the Court of Appeal’s view, G. was therefore
entitled to bring his action against the news publisher alone with a view to
having the article concerning him anonymised so that it no longer appeared
in the list of results obtained following a search based on his first name and
surname (see paragraph 27 above).
247. Thirdly, the alternative referred to by G. in the proceedings before
the Court of First Instance, consisting of the de-indexing of the article in the
internal search engine by the newspaper’s publisher, was not examined by
that court, in view of the fact that the latter had already allowed the main
request for anonymisation of the article. Likewise, it was not examined by the
Liège Court of Appeal, since the applicant had not submitted any request to
that effect and since G., in his summarised observations, had requested that
the first-instance judgment be upheld (see paragraph 24 above). However, it
is worth noting that in the court proceedings the applicant opposed
de-indexing by external search engines, arguing that noindex tags were
technical tools that were liable to lead to problems on the website concerned
and that the search engine operators made the use of such tags subject to the
opening of a user account (see paragraph 23 above).
248. Regard being had to the procedural framework of the dispute and in
particular to the restrictions imposed by the disposition principle in civil
matters under Belgian law (see paragraphs 56-57 above), the Court considers
at the outset that the courts cannot be criticised for confining their
examination to the admissibility and merits of G.’s main claim – for
anonymisation of the article – which they ultimately allowed.
249. Thus, the Liège Court of Appeal found that the most effective means
of protecting G.’s privacy without interfering to a disproportionate extent
with the applicant’s freedom of expression was to anonymise the article on
the website of Le Soir by replacing G.’s first name and surname with the
letter X. In that connection, the Court has previously held that anonymisation
is less detrimental to freedom of expression than the removal of an entire
article (see M.L. and W.W. v. Germany, cited above, § 105). It notes that
anonymisation constitutes a particular means of altering archived material in
that it concerns only the first name and surname of the person concerned and
does not otherwise affect the content of the information conveyed.
82
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