HURBAIN v. BELGIUM JUDGMENT
original version should be equated with a rewriting of history contrary to
freedom of expression and incompatible with archiving principles.
156. Lastly, the Government argued that the anonymisation of the online
article was not apt to have a chilling effect on the behaviour of news outlets,
which were required to take such measures only where a request to that effect
was made by a data subject, in the light of the circumstances of each
individual case and after balancing the rights at stake, with there being no
absolute right to be forgotten. Moreover, purely economic considerations
alone could not alter that balance.
157. In conclusion, the Government observed that the Belgian courts had
determined a specific dispute between two parties in the context of a civil
action for damages while seeking to ensure that a balance was struck between
two competing fundamental rights claimed by the parties. They had taken
their decisions after examining the criteria established by the Court and
striking a reasonable balance between the interests at stake. In the
Government’s view, there were therefore no sufficiently strong reasons for
the Court to substitute its own assessment for that of the domestic courts.
C. Submissions of the third-party interveners
1. The third-party intervener G.
158. The third-party intervener G. is the individual who requested
anonymisation of the article mentioning his name that is in issue in the present
case. He referred to the ordeal he had undergone in seeking to retain the
benefit of being pardoned, having his offence forgotten and being
rehabilitated by society. In the Grand Chamber proceedings he asserted in
particular that the applicant had initially complied with the judicial decision
ordering him to anonymise the article, before backtracking and publishing the
non-anonymised version of the article online.
159. Regarding the necessity of the interference, the third-party intervener
submitted that even if the Grand Chamber intended to employ the new criteria
set out in the Court’s judgment in Biancardi v. Italy (no. 77419/16,
25 November 2021) rather than those established in its settled case-law
concerning the balancing of the right to respect for private life and freedom
of expression, as developed in Von Hannover and Axel Springer AG, the
conclusions of the Belgian courts should be upheld.
160. The intervener emphasised the following: the fact that the article
belonged to the past, meaning that it attracted a lesser degree of protection;
the considerable impact of fresh publication of the article on the Internet
following the online publication of the archives; the absence of any public
interest in being informed of his full name in the article (which, moreover,
was sensitive information); the lack of severity of the measure imposed on
the applicant; and the requirement for the media to conduct their activities in
good faith. He added that the integrity of the archives could not be an absolute
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