HURBAIN v. BELGIUM JUDGMENT
for that of the domestic courts and to disregard the outcome of the balancing
exercise carried out by them.
B. The parties’ submissions
1. The applicant
137. In his submissions to the Grand Chamber the applicant maintained
that the order for him to anonymise the article in question amounted to
interference that had not been necessary in a democratic society. He pointed
out that the present case concerned digital press archives, the aim of which,
in his submission, was to preserve all the information in an exhaustive manner
for future generations. Accordingly, the passage of time could not be taken
into consideration in determining whether or not there had been interference.
Thus, in the applicant’s view, the purpose of journalistic archiving was not
limited in time.
138. The applicant submitted that six main characteristics distinguished
the present case: (a) the lawful nature of the archived material, as its accuracy
was not disputed; (b) the nature of the online document, which was an
archived item rather than a current news report; (c) its consequences, as
archives were intended to be kept over time, even if they had an impact on
the right of the person concerned to protection of his or her reputation; (d) the
fact that publishers were required to verify whether the accessibility of the
archived material had a disproportionate impact on the claimant’s right to
privacy, not at the time when the information was disseminated but at the
time of the request for anonymisation; (e) the status of the person concerned,
in this case a private individual who was a member of a liberal profession (a
doctor); and (f) the fact that the person concerned had not requested the search
engines to delist the archived material. In the light of these characteristics, the
threshold set by the criteria established in Axel Springer AG was so low that
any individual mentioned in archived material could claim entitlement to
have the material anonymised. In the applicant’s submission, the criteria
employed by the Court should take into account the specific features of the
protection of digital archives.
139. The applicant argued that the integrity of the archives was an
essential criterion in balancing the rights at stake and that the case went to the
very essence of the media’s mission. In his view, the role of archives was to
ensure the continued availability of information that had been published
lawfully at a certain point in time, and they must therefore remain authentic,
reliable and complete. Since archiving was one of the functions of the press
(a secondary one, but nevertheless of undoubted importance, as accepted by
the Court), and was thus to be equated with the processing of data for
journalistic purposes, the erasure of journalistic information faced a major
obstacle: data that had originally been processed in the context of current
events in a manner that was justified for journalistic purposes continued to be
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