HURBAIN v. BELGIUM JUDGMENT – SEPARATE OPINIONS 5. In my humble opinion, the new criteria set out in the present judgment have the merit of providing, in line with the subsidiarity principle, a useful framework for the national courts called upon to determine disputes concerning online archives. That is, to my mind, one of the major contributions of this judgment. B. The importance of preserving the integrity of digital press archives 6. I also agree with the emphasis placed in the present judgment on the importance of preserving the integrity of digital press archives, which the judgment describes as a “guiding principle” (see paragraph 185 of the judgment). I share that view. 7. However, as I see it, the integrity of the archives is inextricably linked to their accessibility. The two go hand in hand. Indeed, what is the point of ensuring the integrity of the archives if they are not accessible or are accessible only subject to strict conditions or at considerable cost? In that regard, I note in the present case that, while the version of the article in the digital archives was freely accessible during the domestic proceedings, its accessibility is now limited as it is available only to subscribers. Naturally, the funding of the press is essential in order for it to fulfil its role as a “watchdog” in a democratic society. However, where access is limited or is made difficult for historians, researchers or the public at large, the argument of the integrity of the archives loses much of its force. II. As regards the present case A. The configuration of the present case and the content of the Court’s subsidiary review (i) The configuration of the present case 8. A particular feature of the present case is that it concerns a conflict of rights: the right guaranteed by Article 10 of the Convention and asserted by the applicant before the Court, on the one hand, and the right protected by Article 8 and claimed by G. before the domestic courts, on the other. 9. In such a context the Court cannot consider the case solely from the perspective of the applicant’s interests. It must examine the case in the round, in the light of the applicant’s interests and those of G., as the domestic courts did. Moreover, it is well established that the outcome of an application should not vary according to whether it has been lodged with the Court under Article 8 of the Convention by the person affected by the publication complained of, or under Article 10 by the author or publisher (see, among other authorities, Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 91, ECHR 2015 (extracts)). 87

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