HURBAIN v. BELGIUM JUDGMENT
As pointed out above, there is no public interest in learning the identity of the person
responsible for a road-traffic accident that occurred almost twenty years ago.
It follows from all these considerations that:
- [G.] satisfies the criteria for claiming a right to be forgotten, and that keeping the
article in question online without rendering it anonymous, many years after the events
it reported on, is liable to cause him disproportionate harm when weighed against the
benefits of strict observance of [the applicant]’s right to freedom of expression;
- the conditions of lawfulness, legitimacy and proportionality imposed by
Article 10 § 2 of the European Convention on Human Rights in respect of any limitation
of freedom of expression are satisfied in the present case.”
30. The Court of Appeal went on to give the following reasons for its
decision:
“[G.]’s request for anonymisation, made first in correspondence to Le Soir and
subsequently in the context of the present proceedings, is apt to ensure a proper balance
between the interests at stake.
That balance would not be achieved by the establishment of a right to digital
rectification or communication as proposed by [the applicant], which in the present case
would consist in allowing the respondent to publish a short text, containing a link to the
original article, referring to the rehabilitation order. Such techniques are not appropriate
in the context of an article reporting information that has become damaging owing to
the passage of time. The techniques proposed by [the applicant] would allow the
stigmatising effect of the serious offences committed by [G.], and of the sentence he
has already served, to persist indefinitely and would render the rehabilitation order in
his favour meaningless.
The most effective means of protecting [G.]’s privacy without interfering to a
disproportionate extent with [the applicant]’s freedom of expression is to anonymise
the article on the website of Le Soir by replacing [G.]���s first name and surname with
the letter X ...”
31. The Court of Appeal found that by refusing to accede to the request to
anonymise the article, the applicant had not acted in the way that any prudent
and diligent publisher would act in the same circumstances. In the Court of
Appeal’s view, that refusal constituted a fault. The court further found as
follows:
“[The applicant] is unfounded in his assertion that [G.] has failed to prove the damage
caused to him by the continued online availability of the article in non-anonymised
form. A simple search based on [G.]’s first name and surname in the search engine on
Le Soir’s website or on Google immediately brings up the article; this is undoubtedly a
source of harm to [G.], at least of a psychological nature. Such a situation makes
knowledge of his previous conviction readily accessible to a wide audience which
inevitably includes patients, colleagues and acquaintances, and is thus liable to
stigmatise him, seriously damage his reputation and prevent him from reintegrating into
society normally, despite the fact that many years have passed since he completed his
sentence and was rehabilitated by the courts. ...
[The applicant] contends that the damage sustained by [G.] results solely from the
offence committed in 1994 and from the indexing by Google of the articles from Le
Soir. In his view, no causal link has been established between the fault he allegedly
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