HURBAIN v. BELGIUM JUDGMENT – SEPARATE OPINIONS
underlying the published data complained of in M.L. and W.W. had attracted
“considerable public attention” (see M.L. and W.W. v. Germany, cited above,
§§ 98 and 106). Secondly, the applicants in that case had acquired a certain
notoriety because of the publicity surrounding their trial (ibid., § 106).
Thirdly, the Court was especially critical of the conduct of the applicants in
that case, who had “contacted the press” (ibid., § 108) in order to publicise
their application for reopening of the criminal proceedings leading to their
conviction. These three factors played a decisive role in M.L. and W.W. and
do not apply in the present case. Furthermore, in M.L. and W.W. the criterion
of contribution to a debate of public interest was satisfied (ibid., § 106).
22. The principle of the integrity of digital archives is cardinal and must
constitute the “guiding principle”. Nevertheless, in exceptional circumstances
this principle, despite its cardinal nature, may yield to an interest derived from
another competing right guaranteed by the Convention. This may be the case
where an individual is referred to by name in an article although the disclosure
of his or her identity has no bearing on the information conveyed and/or
causes, or is liable to cause, significant harm to his or her physical or
psychological integrity. Consider, for instance, the case of a person who
makes statements in an article or expresses a viewpoint therein, and who is
later subjected to serious threats because of that position. Or the case of a
person who is mentioned incidentally in a newspaper article in connection
with an activity which she does not wish, or no longer wishes, to be a matter
of public knowledge on an ongoing basis (see Khelili v. Switzerland,
no. 16188/07, 18 October 2011).
Dismissing out of hand any possibility of conducting a balancing exercise,
in the name of an absolute principle of the integrity of digital archives, could
prove problematic in terms of the competing requirements of Article 8,
which, according to our case-law, deserve equal respect (see Satakunnan
Markkinapörssi Oy and Satamedia Oy, cited above, § 123). Moreover, the
integrity of the archives cannot enjoy absolute protection under Article 10 of
the Convention, in so far as that provision does not guarantee an absolute
right.
C. “Right to remember” versus “right to be forgotten”?
23. Personally, I am not fully persuaded by the recognition under
Article 10 of the Convention of a “right to remember” in favour of the press,
as a kind of counterbalance to the “right to be forgotten” under Article 8.
The Court must be particularly careful in appropriating such concepts in
order to avoid employing notions that create more questions than answers. In
this instance, my reservations relate primarily to the fact that, while an
individual may invoke a personal right to protection of his or her reputation
under Article 8 (see Pfeifer v. Austria, no. 12556/03, § 35, 15 November
2007), I struggle to see how a journalist or a news publisher can possess, on
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