On December 3, 2015 the Civil Court of Rome, rendered one of the first Italian rulings following the well-‐known “Google Spain” judgment of the European Court of Justice in relation to the “right to be forgotten”.
As it is known, the important judgment of the European Court of Justice (ECJ) in the Google Spain case (Judgment of 13 May 2014 in Case C-‐131/12) has brought many changes to the general principles governing EU privacy law matters and, particularly, the so-‐called “right to be forgotten”, with an aim to secure the protection of the right to reputation and privacy especially against the potential dangers of the Internet.
In that judgment the ECJ affirmed the existence of an individual’s right to cancellation, removal and de-‐indexing of personal data retrievable throughout online search engines in any case such data appear to be “inadequate, irrelevant or no longer relevant” vis-‐à-‐vis the public interest. In particular, the ECJ recognized the right to request such removal or de-‐indexing directly to the internet providers that operate the search engines, in order to obtain the cancellation, from the result lists, of all the links re-‐directing to webpages and websites containing information that may be no longer relevant and/or current (especially in all cases where such information concerns the existence of any civil or criminal charges agains the requesting individual).
Significantly, the Court of Rome has now issued a fresh judgement in a case that is indeed very similar to the one decided by the ECJ and where the Court has in fact decided to apply the same reasoning.
In the case at hand, an Italian lawyer had brought an action against Google in order to obtain an injunction order for the removal of 14 URLs which eventually came up in the search engine’s results list every time he searched his own name and which directed to webpages containing information on previous criminal cases in which he was allegedly involved between 2012 and 2013.
In first place, the Court of Rome affirmed that Italian law ensures the protection, in principle, of the so-‐called right to be forgotten, which has to be intended as a specific aspect of the right to privacy and reputation. With such regard the Court observed, upholding the ECJ rationale, that the law should safeguard such right in the event of circulation of out-‐dated information, since in that case the interested individual may suffer damage and, at the same time, the public may have lost interest in the information being available (as a long time has passed since the relevant events have happened).
Interestingly the Court ended up rejecting the plaintiff’s request and took the chance to make an in-‐depth analysis regarding the very essence of the right to be forgotten and the actual level of protection that is guaranteed by both the EU and our national legal system.
First of all the Court affirmed that it is the formal recognition of the right to privacy set forth by Articles 7 and 8 of the Charter of Fundamental Rights of the European Union that entitle all EU citizens to require search engines to disable links directing to third party pages hosting out-‐ dated information which come up against searches using their own name and/or personal details.
However, public interest in the information being available will take precedence when particular circumstances occur, i.e. when the information concerns events that may be deemed to be still current or when it concerns someone who plays an important role in public life: in these circumstances, the interference with the fundamental rights is justified due to the prevailing public interest of access to information, and that is true also if such information is accessible through search engines.
With such respect it is significant that the Court of Rome made express reference, in its judgement the guidelines that has been specifically developed upon the matter by the Italian Data Protection Authority after the issuance of above-‐mentioned Google Spain judgment (see, ex multis Orders no. 618/2014 and no. 153/2015), according to which the actual “currency” of the information should be assessed against the following 3 factors: (i) the level of public involvement of the individual; (ii) the nature of the information; (iii) the amount of time that has passed since the occurrence of the reported event.
In application of such factors, the Court ruled that in the case at hand, (i) the plaintiff was a lawyer who is legally vested, professionally, with a public role, (ii) the information was of public interest since it concerned criminal judgments issued in the recent past and (iii) the time passed was not enough for the plaintiff’s involvement “to be forgotten” (since the facts reported had occurred less than 2 years earlier).
Another highlight of the decision is then represented by the fact that the Court of Rome held that the individual who wants to make a request of removal under the “right to be forgotten” rule of law shall in any case provide the ISP with the URL-‐specific indication of the links and contents to be deleted; with such regard the Court of Rome applied that line of case-‐law that has recently become established in relation to the ISP liability matters in cases of infringement of intellectual property rights over the Internet (see, inter alia, Court of Torino, Ordinance of 18 September 2015).
Conclusively, the judgement under scrutiny here represents, due to the increasing importance of the protection of online reputation and privacy in the current digital age, a landmark Italian decision that will likely be one of many in the coming years.