HURBAIN v. BELGIUM JUDGMENT
an article, the Court found that a new set of criteria needed to be taken into
consideration in weighing up the rights at stake, namely the length of time for
which the article was kept online, the sensitiveness of the data and the gravity
of the sanction imposed.
205. For its part, the Grand Chamber considers that its assessment should
take account of the different context of the present case compared with cases
concerning initial publication. Regard being had to the general principles
referred to above and in particular to the need to preserve the integrity of press
archives, and also, to some extent, to the practice of the courts in the Council
of Europe member States (see paragraphs 88-132 above), the Court considers
that the balancing of these various rights of equal value to be carried out in
the context of a request to alter journalistic content that is archived online
should take into account the following criteria: (i) the nature of the archived
information; (ii) the time that has elapsed since the events and since the initial
and online publication; (iii) the contemporary interest of the information;
(iv) whether the person claiming entitlement to be forgotten is well known
and his or her conduct since the events; (v) the negative repercussions of the
continued availability of the information online; (vi) the degree of
accessibility of the information in the digital archives; and (vii) the impact of
the measure on freedom of expression and more specifically on freedom of
the press.
206. In most instances several criteria will need to be taken into account
simultaneously in order to determine the protection to be afforded to private
life when set against the other interests at stake and against the means
employed to give effect to that protection in a particular case (as regards those
means, see paragraph 241 below). Thus, the protection of private life in the
context of an assertion of entitlement to be forgotten cannot be considered in
isolation from the means by which it was implemented in practice. Seen from
this perspective, it is a matter of carrying out a balancing exercise with a view
to establishing whether or not, regard being had to the respective weight of
the competing interests and the extent of the means employed in the specific
case, the weight attributed either to the “right to be forgotten”, through the
right to respect for private life, or to freedom of expression was excessive.
207. In this context the Court observes that it previously found, in
M.L. and W.W. v. Germany (cited above, § 97) – in line with the CJEU’s
Google Spain judgment (C-131/12; see paragraphs 71 et seq. above) and
subsequent judgments concerning delisting by search engines – as follows:
“... it is primarily because of search engines that the information on the applicants
held by the media outlets concerned can easily be found by Internet users. Nevertheless,
the initial interference with the applicants’ enjoyment of their right to respect for their
private life resulted from the decision of the media outlets to publish that information
and, especially, to keep it available on their websites, even without the intention of
attracting the public’s attention; the existence of search engines merely amplified the
scope of the interference. However, because of this amplifying effect on the
dissemination of information and the nature of the activity underlying the publication
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