HURBAIN v. BELGIUM JUDGMENT
Instance (Civil), 17 November 1997, JLMB [Revue de jurisprudence de Liege, Mons et
Bruxelles], 1998, p. 781).
Thus, for recognition of a right to be forgotten, the facts must have been disclosed
lawfully in the first place and must be of a judicial nature; there can be no contemporary
interest in their disclosure; the facts cannot be of historical interest; a certain time must
have elapsed between the two disclosures [or, more precisely, with regard to the online
archived version of an article published at the time of the events, a certain time must
have elapsed between the original dissemination of the article, irrespective of its format,
and the request for anonymisation]; and the person concerned must not be a public
figure, must have an interest in being reintegrated into society and must have discharged
his or her debt.”
29. In the Court of Appeal’s view, its task was “to ascertain whether, in
the instant case and in the light of these criteria, the restriction on press
freedom stemming from [G.]’s request pursue[d] a legitimate aim and
satisfie[d] the proportionality test, in conformity with Article 10 § 2 of the
European Convention on Human Rights”. In that connection the Court of
Appeal found as follows:
“It is not disputed that the original publication of the article in question in the edition
of the daily newspaper Le Soir of 10 November 1994 was lawful and that the facts
reported on were of a judicial nature.
The fresh disclosure, within the meaning specified above, of the facts does not have
any value in terms of newsworthiness.
[G.] does not hold any public office, and the mere fact that he is a doctor in no way
justifies his continued identification in the online article some twenty years after the
events. This is illegitimate and disproportionate, since it does not add anything to the
value of the article and is liable to cause indefinite and serious harm to [G.]’s reputation
by giving him a virtual criminal record, despite the fact that he has not only served his
sentence after a final conviction for the offence but has also been rehabilitated.
Twenty years after the events, the identity of a person who is not a public figure does
not add to the article’s public interest, as the article merely makes a statistical
contribution to a public debate on road safety.
Contrary to [the applicant]’s submissions, removing [G.]’s first name and surname
does not render the information devoid of interest since it will have no impact on the
actual substance of the information conveyed, which concerns a tragic road-traffic
accident caused in particular by the harmful effects of alcohol.
[The applicant]’s arguments concerning the duty to remember and the need to
preserve a full and faithful record in the archives are irrelevant. No request was made
for the impugned article to be removed from the archives, but simply for the electronic
version to be rendered anonymous; the paper archives remain intact and [the applicant]
can still ensure the integrity of the original digital version.
The events reported on in the article are clearly not of historical significance, as the
article relates to an unexceptional – albeit tragic – short news story which is not alleged,
still less demonstrated, to have been a source of particular public concern.
Lastly, a significant length of time (sixteen years) elapsed between the initial
publication of the article in Le Soir in November 1994 and the first formal request for
anonymisation, made in a letter dated 15 June 2010; in all, some twenty years have now
passed since the article was first published ...
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