Iris Online, the legal journal of the European Audiovisual Observatory (Strasbourg) has published in its issue 2023/8 our extensive summary of the (controversial) Grand Chamber judgment of the ECtHR in the case of Hurbain v. Belgium (see also our earlier post in 2022 (here) and IRIS 2021-8/27). The ECtHR found that a court order to anonymise an article in a newspaper’s electronic archive did not violate the publisher’s right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). The judgment holds an application of the “right to be forgotten” as part of the right of privacy under Article 8 ECHR, in particular in respect of online media archives (see also IRIS 2013-9/1 and IRIS 2018-8/1). In essence the judgment confirms that the right to be forgotten in certain circumstances can prevail over the integrity of online news archives and the right to freedom of expression and information. It is the first time that the ECtHR upholds a measure of altering information published lawfully for journalistic purposes and archived on a website of a news outlet.

The Grand Chamber however reached no unanimity for this finding: 5 of 17 judges argue in a dissenting opinion why the harm invoked by the person named in the litigious lawful article was not serious enough to justify the alteration of the online version of the newspaper article. The dissenters express in particular that the alteration of the online version was disproportionate, as the delisting of the article from the results of search engines was to be considered a less restrictive interference with the right to freedom of expression and information as guaranteed by Article 10 ECHR. The dissenters also invoked the juxtaposition between ‘the right to be forgotten’ and ‘the right to remember’.

IRIS 2023-8:1/21, https://merlin.obs.coe.int/article/9840