HURBAIN v. BELGIUM JUDGMENT
“right to be forgotten” of a person who was the subject of content published
on the Internet; those rights were not absolute. The choice of measures to
secure compliance with Article 8 – from which the “right to be forgotten”
was derived – fell within the States’ margin of appreciation, which enabled
them to adapt to the circumstances of each case and to future technological
developments. Referring to Times Newspapers Ltd v. the United Kingdom
(nos. 1 and 2) (nos. 3002/03 and 23676/03, § 45, ECHR 2009), the
Government added that the role of the press in keeping archives accessible to
the public was secondary to its main role, and that the margin of appreciation
afforded to States in striking a balance between the competing interests was
likely to be greater where news archives of past events, rather than news
reporting of current affairs, were concerned.
151. In the present case, the measure in issue had been taken on the basis
of a fair balancing of those rights by the domestic courts, in the light of the
criteria defined by the Court. In the Government’s view, the Grand Chamber
should reaffirm the line of case-law followed by the Chamber, according to
which the criteria to be taken into account regarding the online publication or
continued availability of archived material were in principle the same as those
applied by the Court in the context of initial publication. The Government
submitted, however, that some of these might be of greater or lesser relevance
in view of the circumstances of the case (for instance, publication on the
Internet rather than in print or the fact of asserting the “right to be forgotten”
vis-à-vis a news publisher rather than a search engine operator) and of the
passage of time. As time passed, individuals should have the opportunity to
rebuild their lives without being confronted with their past mistakes by
members of the public.
152. Nevertheless, other criteria might also be taken into consideration
depending on the circumstances of the particular case. A first criterion was
the integrity of the archives. However, this principle, underpinning all
archiving activity, did not mean that the accessibility of archived material
should be absolute, as made clear by the Universal Declaration on Archives
(see paragraph 59 above) and by Article 17 GDPR (see paragraph 69 above).
Furthermore, archived material, which could be stored in a wide variety of
formats, did not have to be accessible to everyone on the Internet. In the
Government’s view, the anonymisation order made in the present case did
not undermine the integrity of the archives but simply limited public access
to an online article mentioning G.’s name. The paper archives would remain
intact and interested persons such as researchers could still request access to
the non-anonymised digital version of the article.
153. Another relevant criterion in the present case was the time that had
elapsed since the initial publication of the article. This had a decisive
influence on the weight to be attached to the other factors already taken into
consideration in the balancing exercise carried out by the Court, namely the
existence of a debate of public interest and whether or not the person in
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