HURBAIN v. BELGIUM JUDGMENT
information relating to a specific person derived from the general right of
personality in its manifestation as a right limiting freedom of expression,
rather than its manifestation as a right to informational self-determination.
The latter right allowed individuals the possibility of influencing, in a
differentiated way, the context and manner in which their personal data were
accessible to and could be used by others. Thus, it guaranteed individuals a
substantial say in deciding what information was attributed to their person. In
the view of the Federal Constitutional Court, the right to informational selfdetermination was a separate manifestation of the general right of personality
that had its own content distinguishing it from other manifestations of that
right.
115. With regard to the general right of personality, the Federal
Constitutional Court held that, given the realities of communication in the
Internet era, the time factor was particularly important in assessing whether
an individual had a claim to protection. The legal order had to protect
individuals against the risk of being indefinitely confronted in public with
their past opinions, statements or actions. Only when it was possible for
matters to stay in the past could individuals be free to make a fresh start. The
possibility for matters to be forgotten was part of the temporal dimension of
individual freedom.
116. In the Federal Constitutional Court’s view, it was not possible to
derive from the general right of personality a right to request that all personal
information disseminated through online communication processes be
deleted from the Internet. In particular, individuals did not have a right to
filter publicly accessible information according to their free discretion and
personal views, allowing them to restrict such information to aspects that they
themselves might regard as relevant and appropriate to their self-perceived
image.
117. From the perspective of the news outlet, account had to be taken of
freedom of expression and freedom of the press, which encompassed the fact
of making archives available to the public online.
118. In the view of the Federal Constitutional Court, the scope of
protection against the dissemination of press reports in a specific case was to
be determined by weighing up the competing fundamental rights while taking
full account of the particular circumstances of the case. In the case at hand,
the proceedings concerned the question whether a news report that had been
published lawfully in the first instance could be disseminated lawfully even
many years later, after the circumstances had changed. In the balancing
exercise, a number of procedural requirements applied (determining in which
cases a change of circumstances had to be taken into account). There were
also substantive criteria for assessing the significance of the passage of time
between the initial publication of information and its further dissemination
(such as the impact and subject matter of the report, the wider context of the
events, including the conduct of the individual concerned, and the extent to
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