The “right to be forgotten”: The first Italian decision02 June 2016
Among the judicially recognized rights (case law) there is the so called ”right to be forgotten”, which has to be understood as the combination of the right to privacy and the legitimate interest that anyone has to be forgotten, or rather not to be remembered for outdated facts, that could be damaging his/her the reputation.
In the judgment Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (AEPD), case C-131/12 (so called “Google Spain”), the Court of Justice of the European Union (“CJEU”) has formally recognized such right, stating the need to assess if the interested person has the right to request that specific information related to him/herself should not be connected any longer to his/her name as resulting from a web search result based on the name itself.
The Court of Rome has recently reached its first decision – No. 23771/2015 (published on 03/12/2015) - on the right in subject, by applying the principles set forth by the CJEU.
In the case in subject, the plaintiff, an attorney, brought a claim against the defendant company asking for a “De-indexation” of fourteen Uniform Resource Locators (known as “URL”, constituting a reference - an address - to a resource on the Internet) that were made available on the web by running a search of his name on the Google search engine.
Although the issue was related to the right to privacy and, consequently, to the right to be forgotten, the court rejected the complaint, basing its decision on two arguments.
Referring to the ruling of the Court of Justice, the Italian court stated that in case of name-based search, the users cannot obtain from the search engine provider the removal of information linked to their name that are recent and are relevant from the public interest point of view.
In order to find an infringement of the right to be forgotten, it is necessary to focus both on the time passed from the considered event, as well as on the public interest to have access to that information, being both necessary constituting elements of the concerned right.
In this regard, the Italian high court (“Corte di Cassazione”) has stated in previous cases that such right requires that "no news already forgotten or unknown to the majority of the public because of time passed, shall be further disclosed" (Corte di Cassazione, case No. 5525/2012).
In other words, as time passes, a given fact ceases to be considered news, therefore regresses to its original private nature. Consequently, the interested party may request the removal of such content from the internet web pages only in specific cases.
It is therefore necessary to carry out a case-by-case evaluation, whereas in the comparison between the right to privacy and the right of the public interest regarding the information released on the web of whoever has a public role, the right of information prevails over the right to be forgotten.
Any complaint about the falseness or inaccuracy of the news being made available by a web search engine, however, shall be only brought against third party web sites that have published incorrect or out of date news, and not against the web search engine provider, who acts as a mere caching provider pursuant to article 15 of the legislative decree (“D.Lgs.”) No. 70 of 9 April 2003.
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