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,
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