HURBAIN v. BELGIUM JUDGMENT
appropriate, relevant and limited to what was necessary for those same
purposes when they were archived. The applicant added that seeking to justify
anonymisation by referring to the existence of a paper archive was outdated,
inaccurate and inappropriate, given that the future of publishing depended on
migration to digital technology and that paper archives would therefore cease
to exist. Moreover, the Court itself had asserted the importance of digital
archives (the applicant referred to M.L. and W.W. v. Germany,
nos. 60798/10 and 65599/10, § 90, 28 June 2018).
140. In the applicant’s submission, individuals should not be allowed to
restrict the public’s access to information concerning them and published by
third parties, unless the information in question was private or defamatory in
nature and its publication was not justified for other reasons. Since limitations
on access to information which members of the public had the right to obtain,
as a matter of public interest, had to be justified by particularly compelling
reasons, any person wishing to restrict that access had to demonstrate the
existence of significant harm, especially if the information was public in
nature. Hence, in the applicant’s submission, it was not enough for an
individual to complain of the effects of a “virtual criminal record”; he or she
had to demonstrate the actual damage suffered. In the present case G., who
had alleged serious harm, had at no point demonstrated its existence before
the domestic courts. Moreover, the Chamber had not ascertained whether G.
had demonstrated the existence of such harm.
141. As to the criterion concerning a debate of public interest, the
applicant argued that the obligation for him to assess, when a request for
anonymisation was made, which information should be kept and which could
be discarded was excessive and at the same time posed a threat to democracy,
as the interest of archived material for the public did not necessarily diminish
with the passage of time. On the contrary, journalists, researchers, historians,
sociologists and members of the public had to be able to carry out research
into past events, including short news stories, which constituted a genre in
their own right as vital witnesses to their time, the state of society and
changing civilisations. Thus, in the applicant’s submission, the public-interest
criterion was not a suitable means of determining whether or not there had
been interference.
142. It was also necessary to consider the nature of the published
information: in the balancing exercise between the rights at stake, the person
seeking to protect his or her privacy had to demonstrate that the alleged
infringement concerned archived information that was private (confidential
and/or intimate) rather than public in nature. In the present case, the
information in question had become public because G. had committed a
serious offence. Although details of previous convictions constituted
sensitive data, as indeed was made clear by Directive 95/46/EC (see
paragraph 68 above) and by the Belgian Protection of Private Life Act (see
paragraph 49 above), they could nevertheless be published for journalistic
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