The Right to be forgotten and the de-indexing

The Court of Cassation with the ordinance n. 9147 of last 19 May dealt again with the controversial relationship between the right to be forgotten and the right of information.

Here, following its precedent, the Court reiterated that the de-indexing by the search engines, and not the cancellation from any online archive, is the appropriate measure to balance the individual’s interest of not to be forgotten, and that of the community not to forget an affair of public domain. Through the de-indexing, the published data is thus preserved, but made accessible no longer through the usual search engines but exclusively in the historical archive of a specific website.

In 2017 the Tribunal of Pescara ordered the cancellation from the digital archive of news reporting eight months plea deal by a subject involved in a series of crimes (fraud in public supplies, replacement of person and false public deed committed by a private individual).

The Tribunal deemed that was illegitimate to store on the internet the personal data of a subject who had been at the centre of an affair whose reporting purpose had ended with the plea deal, as no new elements that could bring the news up to date have occurred. The news was cancellated on the basis that the individual had the right to be forgotten.

The editor of the online newspaper against the sentence was pronounced appealed the case before the Court of Cassation.

The contested ruling (erroneously) recognized the right to be forgotten as an absolute right that should prevail erga omnes and to the detriment of any other interest, including that of the community to be informed. The Cassation, on the other hand, reiterated, according to the prevailing orientation at jurisprudential level, the need to balance both individual and public interests.

On the one hand, the individual has the right not to remain exposed, without time limits, to a representation that is no longer current of his personality, deriving from the availability of news relating to events committed in the past which for the passage of time have lost the public connotation to become a merely private fact. Differently, his reputation and confidentiality would be compromised. In the same way, the public’s interest in being informed and being able to access events that may have relevance for the community shall remain.

The scope of the right to be forgotten is to impede that facts already legitimately disclosed, therefore not private, might be recalled despite the loss of the actuality of news and its social utility. The run of time changes the individual’s personality, and the availability of news already disclosed in the distant past can transmit an image of the person different from that at the present moment, with the detriment of personal identity and reputation which accompanies the new image.

In the light of the mentioned balance, the right to be forgotten can be protected through de-indexing of the article on general search engines or in those prepared by the publisher. In the present case, the Court upheld the publisher’s appeal, dismissing the contested judgment, since the Tribunal in ordering the cancellation had not previously ascertained whether or not the elapsed time had integrated the time factor sufficient to constitute the condition of the right to be forgotten.

In this perspective, the Tribunal should have made a balancing between the rights at stake firstly. Secondly, it should have verified for the news published online and accessible from the search engines at the time of the judgment, the recurrence of the right to be forgotten or of persisting and prevailing informing or documentation and archiving rights.