The right to be forgotten in the case-law of the Italian Court of Cassation

Allegri, Maria Romana: The right to be forgotten in the case-law of the Italian Court of Cassation. In: Gazdasági tendenciák és jogi kihívások a 21. században, (22). pp. 9-21. (2018)

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Abstract

In Italy the Supreme Court of Cassation is at the top of the ordinary jurisdiction; it has the function of ensuring certainty and uniformity in the interpretation of the law. Some of its recent decisions concern the so-called “right to be forgotten” (or “right to erasure”), currently enshrined in Article 17 of the General Data Protection Regulation (hereinafter referred to as “GDPR”), in force since 25 May 2018 in the European Union. This rule obliges the data controller, at the request of the data subject, to erase personal data without undue delay, in cases where personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed, or the data subject withdraws consent or objects to their processing, or personal data have been unlawfully processed, or they have to be erased for compliance with a legal obligation in Union or Member State law to which the controller is subject, or have been collected in relation to the offer of information society services referred to a child. However, the erasure of personal data is not compulsory if the processing is necessary for exercising the right of freedom of expression and information, or for the establishment, exercise or defence of legal claims, or it complies with a legal obligation under national or EU law, or with a task carried out in the public interest or in the exercise of official authority vested in the controller, or with reasons of public interest in the area of public health, or with purposes on the public interest, or finally scientific, historical or statistical purposes. When obliged to erasure, the data controller, taking account of available technology and the cost of implementation, shall take reasonable steps, including technical measures, to inform other controllers which are also processing the same personal data that the data subject has requested the erasure of any links to, or copy or replication of, those personal data. The right to erasure is strictly linked to the “right of rectification” (Article 16 of GDPR), according to which the data subject has the right to obtain from the controller without undue delay the rectification of inaccurate personal data concerning him or her, as well as to have incomplete personal data completed, including by means of providing a supplementary statement. The right to erasure and the right of rectification are both connected to the individual right to the correct representation of one’s “digital identity”, as well as to the protection of one’s “web reputation”. These rights were included in the GDPR as a consequence of the famous Google Spain judgement (13 May 2014) of the Court of Justice of the European Union, which qualified search engines as data controllers under the Directive 95/46/EC, explaining that « since the inclusion in the list of results, displayed following a search made on the basis of a person’s name, of a web page and of the information contained on it relating to that person makes access to that information appreciably easier for any internet user making a search in respect of the person concerned and may play a decisive role in the dissemination of that information, it is liable to constitute a more significant interference with the data subject’s fundamental right to privacy than the publication on the web page». Therefore, search engines are obliged to evaluate all de-listing requests made by data subjects and, in case the disputed information is no longer of public interest, they shall remove it, also in cases where it is not erased beforehand or simultaneously from the web pages where it was originally published. This decision has invested search engines – maybe inappropriately, considering they are private companies pursuing profit goals – of the delicate task of balancing the interest of the general public in having access to information related to the data subject’s name with the individual rights to the respect for private and family life and to the protection of personal data (Articles 7 and 8 of the Charter of fundamental rights of the European Union). Therefore, search engines shall consent to de-listing in cases where for particular reasons, such as the role played by the data subject in public life, the interference with one’s fundamental rights is justified by the preponderant interest of the general public in having access to the information in question. According to the Transparency Report periodically released by Google, since May 2014 it has received almost 700.000 de-listing requests and proceeded to de-listing in 44% of cases. It has to be underlined that neither the Google Spain judgement nor the GDPR guarantee that the data subject will be actually “forgotten” as a consequence of the de-listing or erasure of personal information, since it is unlikely – or even impossibile – that information will totally and definitely disappear from the Internet, once uploaded. Therefore, the actually protected right is only that some personal information obtain less visibility after de-listing and that incorrect, distorted or irrelevant information is somehow made more adherent to the data subject’s expectations. In other words, the so-called “right to be forgotten” protects one’s personal identity, allowing one to keep a better control of one’s “digital traces” and to force others to make use of them according to one’s will. The Italian Court of Cassation has especially stressed the connection between the right to be forgotten and the protection of the personal reputation, since everyone has the right to be represented in social life with his or her own “real” identity, i. e. an identity reflecting the actual personality of the subject from an intellectual, political, social, religious, ideological, professional point of view (decision no. 3769/1985). Firstly, the Court focused on the protection of the so-called “historical privacy”, i. e. the individual right not to remain undeterminedly exposed to the further damages that the repeated publication of an information referred to an event occurred in the past, although originally disclosed legitimately, may bring to that person’s honour and reputation (decision no. 3679/1998). From then on, many judgments of the Supreme Court concerned people who claimed the right that media did not re-publish more news related to past events (often judiciary cases) in which they were involved: the onset of the “right to be forgotten” was considered in connection to the passage of time, because of which the public interest and the social usefulness of certain information had diminished. Some years later (decision no. 11864/2004) the Court stated that the right to be forgotten protects the social projection of personal identity, i. e. the individual need to be protected from the disclosure of (potentially) harmful information which are no longer topical and are therefore unjustifiably treated. For the first time in 2012 (decision no. 5525), the Court dealt with a case concerning a claim for the erasure of information stored in an online newspaper’s archive, based on the fact that the information was not updated (the published article referred to the criminal conviction of a politician, without mentioning his subsequent acquittal). The Court of Cassation concluded that the claimant had not the right to be forgotten (i. e. to have the article repealed from the online archive), but to the contextualization and updating of the news story; therefore, the publisher should update the content of the article or link it to other articles later published, reporting the news of the acquittal, in oder to safeguard both the individual right to the protection of personal reputation and the citizens’ right to receive correct, complete and reliable information. In other words, the right to be forgotten does not correspond to the right to remove inconvenient or unwanted news from public circulation, in order to “clean up” one’s reputation, but simply to safeguard one’s personal identity on the Internet by obtaining the updating of news that, although originally correct, may have become detrimental to one’s reputation in relation to the passage of time or the role played by the subject in the public life. Similarly, in a judgement of 2013 (no. 16111), concerning a former terrorist who, having been condemned and having served his sentence, no longer wanted his past to be remembered, the Supreme Court ruled that the occurrence of a new fact can justify the repetition of past events, by renewing the relevance and public interest of that news. More recently (decision no. 13161/2016), the Court specified that, after a certain period of time, the right to privacy tends to prevail over the right of reporting news; therefore, the editor of a local online newspaper was obliged to remove an article published some years before, because the information was no longer of public interest, but kept on damaging the subject’s reputation, being the article easily accessibile by simply typing the person’s name in the newspaper’s internal search engine. It is striking, however, that the Court ordered the cancellation of the disputed article instead of its simple de-listing by the search engine. When the right to be forgotten – i. e. the erasure or de-listing of information published online that damage one’s reputation – was claimed by a a celebrity, the reasoning of the Court of Cassation brought to different results: sometimes it held that the citizens’ right to be informed should prevail (as in the decision no. 38747/2017 regarding Vittorio Emanuele di Savoia, son of the last king of Italy), while sometimes (for example, in the decision no. 6919/2018) it stated that even a well-known singer is entitled of the right to be forgotten; consequently a popular TV show should not keep on broadcasting a video dating back to 2005 in which the singer appeared as a rude and unkind person. This last decision is very significant because the Supreme Court has specified the conditions under which the fundamental right to be forgotten can be limited, in favour of the equally fundamental right of reporting news: 1) the contribution made by the information to a debate in the public interest; 2) the actual and current interest in the dissemination of the information; 3) the high degree of notoriety of the subject represented; 4) the methods used to obtain and give information; 5) the the right of reply given to the interested party before the disclosure of the information to the general public.

Item Type: Book Section
Journal or Publication Title: Gazdasági tendenciák és jogi kihívások a 21. században
Date: 2018
Volume: 22
ISSN: 2062-5588
ISBN: 978-615-5411-75-5
Page Range: pp. 9-21
Series Name: Lectiones iuridicae
Related URLs: http://acta.bibl.u-szeged.hu/69637/
Uncontrolled Keywords: Gazdasági jog - olasz - 21. sz.
Additional Information: Bibliogr. a lábjegyzetekben ; összefoglalás angol nyelven
Subjects: 05. Social sciences
05. Social sciences > 05.02. Economics and business
05. Social sciences > 05.02. Economics and business > 05.02.01. Economics, econometrics
05. Social sciences > 05.05. Law
Date Deposited: 2020. Jun. 29. 09:10
Last Modified: 2020. Jun. 29. 09:17
URI: http://acta.bibl.u-szeged.hu/id/eprint/69646

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