Right To be forgotten

THE ORIGINS AND ITS PROTECTION IN ITALY

The right to be forgotten is the right of a person to have his or her privacy protected personal identity, honour and reputation.

The right to be forgotten concerns the interest of each person in not being indefinetly exposed to the harm that the repetition of the publication of a piece of news, even if legimately disclosed in the past, may cause to his honour and reputation if it is not correctly updated or contextualised.

The need to protect people’s confidentiality (or privacy) is a very ancient need and it was born in Anglo-Saxon countries, as an inviolable space that every individual needs to protect. But it is only with the latest technological developments that the protection of one’s privacy translates into real right to the protection of personal data within the vast context represented by globalisation,the Internet and online databases.

This article aims to illustrate the regulatory sources and the most recent developments in case law on the subject of the right to be forgotten, a right which, while appearing to be clearly defined, is constantly evolving and assumes a constant alignment between constitutionally protected interests, such as confidentiality on the one hand, and freedom of expression on the other.

THE LEGISLATIVE FRAMEWORK

Italian legislation

Constitution: The right to privacy finds its highest source of protection in the articles 2, 3 and 21 of the Constitution, which respectively protect the inviolable rights of man and the dignity of each person, as well as establish the need to balance the right to news and personality rights.

Privacy code (legislative decree n. 196 of 2003): contains data protection regulations personal data, i.e. the right to obtain the cancellation of personal data processed in violation of law or whose conservation is not necessary 1. The code also provides for penal sanctions (articles 167 and following) for the illegitimate treatment of personal data.

Consolidated text of the duties of the journalist: article 3 states that journalists are responsible for the protection of the individual right to privacy, providing that “the journalist (…) respects the right to personal identity and avoid referring to details relating to the past, except when they are essential for the completeness of the information“.

European legislation

European Convention on Human Rights of 1950: the ECHR, in article 8, establishes the right to respect for private and family life, is a fundamental right 2.

EU Regulation no. 2016/679 (better known as “GDPR”): the right to be forgotten is protected by art. 17 – “Protection of individuals with regard to the processing of personal data, as well as to the free movement of such data”.

The Art. 17 (“right to erasure“) establishes that the interested party can decide in any time to request the deletion of its personal data. The data controller, anyone who manages or has published personal data of any individual, has the obligation to delete such data data without unjustified delay whenever the interested party requests it, and also when:

  • personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed;
  • the data subject revokes the consent on which the treatment is based;
  • the interested party opposes the treatment;
  • the personal data have been processed unlawfully;
  • personal data must be deleted to fulfill a legal obligation under the Union or Member State law to which the data controller is subject;
  • personal data have been collected in relation to the company’s offer of services of information.

However, the same article 17 defines the right to erasure described above; therefore, the request of the interested party can be rejected if the processing of his data has taken place:

  • for the exercise of the right to freedom of expression and information;
  • for the fulfillment of a legal obligation which requires the treatment envisaged by law of the Union or of the Member State to which the data controller is subject or for the performance of a task carried out in the public interest or in the exercise of public duties powers vested in the data controller;
  • for reasons of public interest in the field of public health;
  • for archiving purposes in the public interest, for scientific or historical research or for statistical purposes;
  • for the assessment, exercise or defense of a right in court.

The law therefore provides for a right to have one’s personal data deleted, but at the sametime establishes that this right can be limited in certain circumstances, in particular for the exercise of the right to report or for reasons of safety or public health.

It is in this context that the need to strike a balance between the right to be forgotten, personality rights and the public right to information arises.

With the consequence that the right to be forgotten, which appears at first reading as the envisaged right clearly from the law to the deletion of your personal data, it is actually far from clear and defined. It is a right whose boundaries and interpretation are constantly evolving and determination by a plurality of factors, such as the technological context, sensitivity of public opinion at a given moment in history, as well as the law of a democratic state to the exercise of an adequate right to report.

THE RIGHT TO BE FORGOTTEN IN ITALY: THE MOST SIGNIFICANT JUDGMENTS

Civil Cassation May 27, 1975: the right to be forgotten (or rather, in this case, to confidentiality) debuts in Italian jurisprudence with the Soraya case. The Iranian princess complained the violation of her privacy as had been published showing her in a poolside in the company of director Franco Indovina and she obtained compensation for having been repudiated by her husband, the Shah of Persia, because of this publication.

Civil Cassation 9 April 1998, n. 3679: in this sentence the Court highlights how there is a “new profile of the right to privacy, recently also defined as the right to be forgotten, understood as rightful interest of every person not to remain indefinitely exposed to the further damage that the repeated publication of a piece of news in lawfully disclosed past causes to his honour and reputation“.

There are three successive judgments on the right to be forgotten that focus on the importance of “current events” of the news:

  • Civil Supreme Court 5 April 2012, n. 5525: in this case the request for a subject asked to update the news concerning him, related to events of judicial reporting, published in an online database: updating of personal data is the basis of their protection and prevails over storage in databases;
  • Civil Supreme Court 26 June 2013, n. 16111: a former terrorist complained that after several years there was talk of him again in relation to the discovery of an arsenal of weapons in his area of residence: in this case the right to be forgotten was considered to prevail over to the right to report as there was no relevance, and therefore no connection, between the discovery of the weapons and the former terrorist militancy of the person concerned;
  • Civil Supreme Court 20.3.2018, n. 6919: another case concerns the well-known singer-songwriter Antonello Venditti, who complained about the broadcasting of a service that concerned an episode in which he had refused to grant an interview to a journalist, with disparaging statements by the author of the service, five years after the fact. The Court Cassation ruled that the video with the Venditti interview had been illegitimately broadcast by Rai, solely for audience purposes, and the interview constituted an illicit compression of the right to the oblivion of the songwriter.
  • United Sections of the Civil Supreme Court 22 July 2019, n. 19681: in 2019 the United Sections of the Supreme Court provided the criteria on which the balance between the individual’s interest in being forgotten and the public interest in the news, clarifying that they assume decisive importance:
  • the reputation of the data subject;
  • his involvement in public life;
  • the contribution to a debate of general interest, the subject of the news, the form of the publication;
  • the time elapsed since the events actually occurred.
  • Civil Supreme Court 8 February 2022, n. 3952: The Supreme Court has recently ruled on the issue of de-indexing, as a “remedy to prevent the person’s name from being associated by the engine of research to the facts of which the internet continues to have memory”. In this way, the law is “indulged the right of the person not to be found easily” and a balance is made between the right to privacy and freedom of the press.

On the other hand, the Cassation rejected the request to eliminate the cached copies of the articles published on the net, stating that this remedy requires a more accurate evaluation, since such removal does not only concern the name of the interested party but other keyswords referable to the story as a whole, which can still maintain a certain relevance for information purposes.

  • Civil Supreme Court, Ordinance 8 June 2022, n. 18430: the Supreme Court confirmed the conviction of the hosting provider (Google LLC) to the obligation to de-index certain urls, as well as to compensation for damage. Google, in fact, despite it had been notified of the criminal sentence of conviction for defamation of the original spreader of a false news, had failed to provide for its de-indexing despite the request made by the victim of the defamation.

Conclusions

The right to be forgotten, i.e. the right of an individual to “be forgotten” in relation to facts of news for various reasons (judicial news, public role in the society, fame, social or scientific interests in the news, etc.) is a complex and varied right facets, which cannot be interpreted unambiguously but requires a case evaluation by chance of the interests at stake; in particular the right to report and to demonstrate thought on the one hand, and the right to privacy and the protection of personal dignity on the other.

Concretely, the right to be forgotten is protected through:

rectification and updating of information,

– the de-indexing of the article by the search engine, e

– lastly, as a more drastic form, the deletion of the link reporting the news.

The evaluation belongs in the first instance to the webmaster, that is to the one who published the news in a website, in a newspaper, in a blog, which should act as a “third party” and apply the principles established by jurisprudence. It is clear that this consideration does not always take place in impartial and correct way because an obvious conflict of interest is created: in fact, the same person who published the article (in practice often the editor-in-chief of a online newspaper) to proceed with its de-indexing or removal.

In the second instance it is therefore possible to appeal to the judicial office or to the Privacy Guarantor, a real third party in charge of carrying out that balance between confidentiality and right to report which has been discussed and which cannot be ignored in the context of the interpretation of the law to oblivion.