HURBAIN v. BELGIUM JUDGMENT – SEPARATE OPINIONS subsequently become more relevant if the person concerned comes to the forefront of public attention. Furthermore, archived information may have acquired historical, research-related or statistical interest or continue to have value for the purposes of placing recent events in context (see paragraph 222 of the judgment). All these factors weigh in favour of conserving journalistic information that was published lawfully, irrespective of its contribution to a current debate of public interest. 12. Data subjects are not obliged to contact the original website, either beforehand or simultaneously, in order to exercise their rights vis-à-vis search engines, as these are two different forms of processing, each with its own grounds of legitimacy and with different impacts on the individual’s rights and interests (see paragraph 208 of the judgment). Thus, to my mind, the distinction between the activities of search engine operators and those of news publishers – who may rely on the freedom of expression protected by Article 10 of the Convention – is a crucial aspect to be considered in the assessment that should be made of any interference with freedom of expression. Unfortunately, the majority make too little of this distinction in their judgment. 13. In these circumstances, and particularly in the light of the principle of the integrity of digital press archives and their crucial importance, the examination of a request for the alteration of journalistic content stored in the online archives should not entail a balancing exercise between two rights of equal standing. Rather it should involve an assessment of necessity under the second paragraph of Article 10, that is to say, a thorough examination of the existence of a pressing social need and of the requirement of strict proportionality. The guiding principle should be that digital press archives, as a general rule, must retain their authenticity and integrity, especially if the lawfulness of the original article has not been called into question. 14. The main considerations in conducting such an examination, and which form the core of the approach proposed in my alternative, would be the following. (a) In cases concerning the protection of a person’s social or professional reputation under Article 8 of the Convention, the Court has held that an attack on a person’s reputation must attain a certain level of seriousness and be made in a manner causing prejudice to personal enjoyment of the right to respect for private life (see paragraph 189 of the judgment). Regard being had to the circumstances of the present case, for the alteration of a lawful article stored in a digital press archive to be justified, the harm alleged by the person concerned on account of the article must be serious and duly substantiated. Thus, the interference with freedom of expression can be regarded as necessary only for particularly compelling reasons involving serious harm caused by the continued availability of the information in question on the Internet. Such harm must stem from the particularly sensitive nature of the published information and/or from the vulnerability of the person concerned, 98

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