HURBAIN v. BELGIUM JUDGMENT
applied in a manner which renders its rights practical and effective, not
theoretical and illusory. A failure by the Court to maintain a dynamic and
evolutive approach would risk rendering it a bar to reform or improvement
(see, mutatis mutandis, Christine Goodwin v. the United Kingdom [GC],
no. 28957/95, § 74, ECHR 2002-VI).
182. On the subject of digital press archives, the Court has previously
stressed the importance of their role in enabling the public to learn about
contemporary history and allowing the press, by the same means, to carry out
its task of helping to shape democratic opinion (see M.L. and W.W.
v. Germany, cited above, §§ 101-02). For its part, Recommendation No. R
(2000) 13 of the Committee of Ministers to member States on a European
policy on access to archives also notes that archives constitute an essential
and irreplaceable element of culture, contributing to the survival of human
memory (see paragraph 63 above). Even in the context of a defamatory
publication the Court has held that “it is not the role of judicial authorities to
engage in rewriting history by ordering the removal from the public domain
of all traces of publications which have in the past been found, by final
judicial decisions, to amount to unjustified attacks on individual reputations”
(see Węgrzynowski and Smolczewski, cited above, § 65).
183. The Court also notes the emergence over the past decade of a
consensus regarding the importance of press archives. Hence, in the specific
context of the processing of personal data at European Union level, the GDPR
makes express provision for an exception to the right to the erasure of
personal data where the processing of the data is necessary for the exercise of
the right of freedom of expression and information (Article 17(3)(a)). Like
Directive 95/46/EC which preceded it, the GDPR requires EU member States
to provide in their legislation for exemptions or derogations for processing
carried out for journalistic purposes if they are necessary to reconcile the right
to the protection of personal data with freedom of expression and information
(Article 85(2)). According to recital 153 of the GDPR, particular attention is
to be paid to the processing of personal data “in news archives and press
libraries” (see paragraph 69 above). In the same vein, in the Council of
Europe context, the explanatory report to Convention 108+ specifies that the
exceptions and restrictions provided for in Article 11 of that Convention
should apply “in particular to processing of personal data ... in news archives
and press libraries” (see paragraph 62 above).
184. For the press to be able properly to perform its task of creating
archives, it must be able to establish and maintain comprehensive records.
The Court considers – like the applicant (see paragraph 139 above) – that,
since the role of archives is to ensure the continued availability of information
that was published lawfully at a certain point in time, they must, as a general
rule, remain authentic, reliable and complete.
185. Accordingly, the integrity of digital press archives should be the
guiding principle underlying the examination of any request for the removal
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