The topical subject related to the keeping of newspaper news in digital archives and to the respective data protection implications has made a comeback following the recent ruling of the Court of Cassation No. 5525 of 5 April 2012. The Supreme Court has reversed the previous stance of the Italian Data Protection Authority, which had constantly deemed lawful to keep press articles - as historical documents - in digital archives, thus declaring the groundlessness of any requests to remove the news becoming potentially libellous from the historical archives, since no longer current events.

In particular, the case started from a litigation news article, published in April 1993 in a wellknown national newspaper, reporting the past litigation record of a politician - at the time, local administrator - who had been arrested for corruption. Even if the matter had been settled without any criminal consequences for the politician, such article, after a long time, could still be found on the digital archive of the newspaper at issue, thus consequently linked by search engines and, therefore, any Internet user could find it. For this reason, the party concerned initially lodged a petition with the Italian Data Protection Authority requesting the block of the data from the newspaper’s digital archive. Against the Italian Data Protection Authority’s refusal, he then had recourse to the Court of Milan, objecting not the truthfulness of the article’s content, nor the fact that it could still be deemed of public interest but, rather, to have incurred damage due to the existence, in a digital archive of a well-known newspaper, of an article which, although reporting correct and true information on his arrest, did not convey the - different and subsequent - news that the judicial inquiry had ended with his acquittal. Nonetheless, the Court of Milan, by way of judgment of 6 April 2010, rejected the objection of the politician, who subsequently brought an appeal before the Court of Cassation pursuant to article 152, paragraph 13, of Legislative Decree No. 196/2003 (now abrogated) against any such judgment.

Instead, the Court of Cassation, by way of judgment No. 5525/2012, has ruled as follows:

  • the rightfulness of keeping news for historical purposes1, provided that two concurrent conditions are met: (a) the news item is significant as a historical fact and (b) there is public interest in knowing the news as a result of special historical, educational and cultural needs;
  • the keeping of the news is lawful, under the same conditions, even if it takes place through the Internet (for instance, the online publication of newspapers archives);
  • the person to whom the data belongs shall in any event be entitled to the right to oblivion, which needs be understood as the right to control one’s personal data and may entail, even if the news is true - and for similar but more convincing reasons, in the case of a report - the claim for the contextualisation and update of the personal data (and, if necessary, taking into consideration both the aim for keeping it in the archive and the underlying interest, even until the removal thereof);

In the light of the aforesaid principles - as, therefore, clarified by the Supreme Court - not only is the transfer of the data to the historical archive certainly admissible, for the purposes of the lawfulness and correctness of the relevant processing and of the relevant spreading through the Internet, but it is also unfailingly necessary for the information and the processed data to be duly supplemented and updated.

On the other hand, the Court of Cassation has further specified that, in order to restore the entirety and, therefore, the truthfulness of the news - no longer such due to the matter’s development throughout time -, in particular, the update needs to take place by inserting subsequent or new news compared to the news existing at the beginning of the processing. Therefore, the mere generic possibility to find further news concerning the case at issue inside the "Internet sea" is not sufficient, but it is necessary to prepare a system fit to report (either in the body or in the margin) the existence of a news upgrade or development, and which one, thus allowing quick and easy access by users in view of the relevant adequate in-depth analysis. In the event of any disagreement between the parties, the judge ruling on the merits shall be identify and indicate the procedures to be adopted in order for the owner of the archive and of the Website to achieve the aforesaid aims.

The judgment at issue has already been heavily criticised, since it would put an excessive burden on the owners of digital archives (i.e. constantly updating the news included in each of their articles shown on the Website). Nonetheless, at present, it also seems that the Italian Data Protection Authority, with two "twin" rulings (order No. 2286432 of 20 December 2012 and order No. 2286820 of 24 January 2013), has embraced the idea of constantly updating digital archives for the sake of protecting personal data and personal identity.