When it comes to the so-called right to oblivion – or right to be forgotten – on the Internet, Italy seems to be ahead in terms of protecting an individual’s rights, at least if the opinion of the Advocate General in ECJ Case C-131/12 is any indication.
In Italy, like anywhere else, this topic has become prominent in recent years, with the growth of the Internet and digital news media. Due to the combined effect of online news archives and automatic indexing by search engines, some individuals find their name permanently associated with past events that do not reflect their current persona, or with old allegations of which they have since been cleared. Especially in relation to crime news, the effects of this permanent public exposure can be damning to individuals.
In these cases, a balance has to be struck between several rights: the freedom of information, the right to information and historical research and documentation, and, indeed, the “right to oblivion”. The latter has been construed by Italian courts as a facet of the protection of personal identity; it is often defined as the right of any individual to see himself or herself represented in a way that is not inconsistent with his/her current personal and social identity. The “right to oblivion” or “right to be forgotten” is, therefore, an expression that does not accurately reflect the concept it aims to convey, but it has definitely stuck nonetheless.
For years, these kinds of issues have been dealt with mainly by the Garante della privacy (the Italian Data Protection Authority), which often solved conflicts by simply ordering the “de-indexing” of the relevant article from the main Internet search engines. This can be accomplished by the source web page publisher without the active participation of the search engine service provider.
In 2012, Italy had its first landmark decision, the Court of Cassation’s ruling in case no. 5525/2012.
The case argued before the Court of Cassation was emblematic. A known person had unsuccessfully requested first the Garante, and then a local civil court, to order the publisher of a major newspaper to update an old article in its online archive, which was displayed at the top of all Google searches made using the plaintiff's name.
The article gave an account of the plaintiff’s arrest on criminal grounds, without reporting his subsequent acquittal on all charges (which at the time of publication had not yet occurred). The first instance Court denied protection on the grounds that the news, at the time of publication, was current, true and of public interest, and its publication therefore was a legitimate exercise of the freedom of information. The current presence of the article on the Internet was deemed by the Court to serve a valuable historical and documentary purpose, which would have been disrupted by any alteration to the original document.
The Court concluded that the plaintiff could not lay any claim to a right of oblivion, given their status as a public figure, hence the existence of “a persistent public interest in learning news related to his personal history”.
Through appeal, the case finally landed before the Court of Cassation, which took a completely different view. For a start, it explicitly recognised the existence in the Italian legal system of a right to oblivion, in the sense explained above of a right to protect one’s (current) personal and moral identity in a social dimension. The Court then stressed the difference between an archive in the more traditional sense and the Internet, where all news is presented in a non-structured, “flat”, and decontextualised manner. It noted that if the purpose of historical documentation could justify, from the point of view of privacy law, public access to an original article, and the identification of the individuals named, it was consistent with this purpose, and at the same time respectful of the right to oblivion, that the news be updated and contextualised, or even radically deleted from the archive, if it did not correspond to the truth any longer.
The Court of Cassation concluded that, in the case in hand, there was an obligation upon the publisher to devise a suitable method to provide (either in the body or at the side of the original article) an update to the original news.
Almost in passing, the Court also noted that the search engine service provider had no role or responsibility in the matter, thus rejecting one of the arguments of the newspaper’s editor, who had claimed his lack of locus standi in lieu of Google. This finding anticipates by a year the aforementioned conclusions of the Advocate General of the European Court of Justice in Case C-131/12, issued in 2013.
Citing the Court of Cassation ruling, between 2012 and 2013 the Garante granted several applications seeking an order against the publisher to annotate an online article with a follow-up to the reported news, often in connection with the de-indexing from search engines. But ordinary civil courts also paid attention. In case no. 5820/2013 before the Milan Civil Court, the judge took the Court of Cassation’s doctrine even further.
The similarities between the Milan case and the one decided by the Court of Cassation are apparent. The plaintiff in the Milan case complained about the presence in the online archive of a major newspaper of an article from 1985 in which he was described, inaccurately, as a loan shark and tax evader; the article had been indexed by Internet search engines and was prominent in search results. The plaintiff invoked defamation and infringement of his right to oblivion. The Milan court ruled out defamation (based on a statute of limitation), but acknowledged the violation of the right to oblivion.
In particular, the Court noted that the news reported was in part untrue, and that above all there was no particular interest to justify wide public access to the article, in light of the time lapsed and the lack of a significant public role of the plaintiff. As for the purpose of historical documentation, this could be satisfied with the preservation of a paper copy.
Noting that the Court of Cassation had endorsed in theory, as an extreme measure, the complete removal of an article from the Internet, the Milan Court found that, in the case before it, this was indeed the most appropriate remedy, given the lack of any appreciable interest to counterweigh the protection of personal identity. It therefore ordered the publisher to remove the article from the online news archive, allowing it to keep only a hard copy for documentary purposes, and sentenced it to pay compensation for moral damages.
Notably, the plaintiff had jointly sued the publisher and Google Italy, but the latter was found to lack standing, on the grounds that the actual data processing was carried out by Google Inc.
For national publishers, this new trend will pose management problems. As it would be impossible to arrange a retrospective review of thousands of articles already made available on the Internet, they will have to decide how to handle requests to update or delete them in the name of the right to oblivion, requests that, no doubt, will increase exponentially.