Content Regulation / Censorship, Privacy, Data Protection and Retention, Defamation / Reputation
Hegglin v. Google
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The Italian Supreme Court ordered the de-indexing of a search result which linked the name of a businessman to a plea bargain into which he had entered. The businessman had approached the Court of First Instance of Pescara, seeking the removal of the article from internet search results. The First Instance Court held that the purpose of the article’s publication to inform had been exhausted by the plea bargain and ordered the removal of the article from the online archive. The Supreme Court held that there was a need to balance the right to be forgotten with the right to inform and held that de-indexing the article from search results – but keeping it in the archive – was a proportionate remedy.
In 2015, S.A., the CEO of an Italian company in the field of medical devices, entered into a plea bargain for fraud (and other criminal offences) he had committed. In 2017, he complained that by Googling his name, a newspaper article on his judicial proceedings appeared as the first result (due to the indexing process). He claimed that this was in violation of his reputation, and, by invoking his right to be forgotten, he brought an application in the Court of First Instance of Pescara, Italy to remove that newspaper article from the search results. The article had been published by Donlisander Communication and was accessible through a Google search. The Court of First Instance held that the purpose for which S.A.’s personal data had been collected in this instance – that is, for the right to inform – had been exhausted with the plea bargaining, and the permanence of the article online was a violation of S.A.’s right to be forgotten.
Donlisander appealed the decision to the Supreme Court.
The central issues for the Court’s determination were whether S.A. had a right to be forgotten, and if so, what remedy it should order.
Donislander argued that the Pescara Court’s decision conflicted with its own case law as that Court had previously ruled that the deletion of an article from the historical archives of a newspaper could not be ordered and that the correct balancing between the right to be informed and the right to be forgotten would be found in the de-referencing of the article from the general search engines. Donlisander argued that the lower court’s ruling violated, in particular, Article 99 of the Italian Legislative Decree n. 196, 2003 regulating the compatibility of data processing for historical, statistical or scientific purposes with the purposes for which data had been originally collected. It also submitted that Article 12 of the Code of Conduct of Journalists allows for the processing of personal data of persons involved in criminal proceedings without limitations and that the article can be stored in an online historical archive which serves the same purpose as a physical one.
Donlisander argued that the short time period (one and a half years) between the criminal proceeding and the beginning of the proceedings could not justify the invocation of the right to be forgotten, and that Mr. S.A. could not legitimately expect to be forgotten and to disappear from the public debate in such a limited period of time. Donlisander also argued that the lower court had not correctly taken into consideration the interest that the public had in being informed with regards to the developments of the criminal proceedings. Donislander maintained that de-referencing the search result would have been the correct solution, and referred to the Court of Justice of the European Union case of Google Spain v. AEPD.
S.A. submitted that at the time at which he brought the action before the Court of Pescara the article had not been stored in the online archive yet and was only available via Google search. He also submitted that the interest of the public in being informed with regards to the criminal proceeding had expired due to the passing of time, in light of his being a completely unknown person. S.A. argued that the publication of his initials, instead of his full name, would have sufficed to realize the right to inform.
The Supreme Court conducted an historical overview of the evolution of the right to be forgotten in its jurisprudence. It analyzed the right to privacy, and referred to the case, 4487/1956, in which the Court had upheld a “pluralist theory” of individual’s rights: the right to one’s image, the right to one’s name, the right to correspondence and to private domicile were only individually protected by the Italian Civil Code and did not constitute – collectively – a right to privacy. That Court had stated: “the simple desire to privacy has not been considered by the law maker as an interest which deserved protection; whoever has not been able to keep the facts of his life private cannot expect the secret to be kept by others’ discretion; curiosity and gossiping, though perhaps not commendable, do not give origin per se to a legal offence”. Another case, 990/1963, had referred to Article 2 of the Constitution according to which “The Italian Republic recognizes and guarantees the inviolable rights of the person (…)” and acknowledged that – although there was no right to privacy – there was a “right erga omnes to the freedom of self-determination in the development of a person’s individuality”. That Court had held that it was prohibited to disclose information regarding a person’s private life “unless the person has given his or her consent or unless there is an interest of the general public in being informed”. The Court acknowledged that with the passing of time, the Supreme Court had expressly confirmed that there is an autonomous right to privacy, which exists irrespective of the right to the protection of honor and reputation. The right to privacy, constitutionally protected in Article 2, protects those situations which are strictly private and connected with family life from external interferences. This right may come into conflict with the right to inform and be informed of the public (Article 21 of the Constitution) and when a conflict arises, the proportionality criterion shall play a pivotal role and the right to inform would prevail where three conditions are met: 1) the piece of information shared is true; 2) there is a public interest in the knowledge of the fact (so-called “relevance”); and 3) the facts are illustrated in a form which does not harm the honor of the person or entity involved.
The Court analyzed the evolution of the right to be forgotten, and noted that it originally had the nature of a “right to be left alone”. This right consisted in not having one’s personal events shared: it had – according to the Court – a “static” nature as it was not focused on the dynamic flow of information, but rather on the need to keep personal information “secret”. The Court noted that a more dynamic nature of the right emerged from the evolution of the mass media which facilitates the swift circulation of information and, with the development of the information society, an individual needs to be protected against the collection and flow of his or her personal data. The Court stated that the right to privacy, therefore, changed in nature and consists first, in the right to control over the circulation of personal information and then, more sharply and with the Code of Privacy (Legislative Decree n. 196/2003) in the right to protection of personal data. Personal data must be collected and processed according to the principles of proportionality and relevance and cannot be used beyond specific purposes – in particular, to prevent the past from hindering the present.
The Court referred to the case, Decision n. 3679/1998, and identified that the right to be forgotten differs from the right to privacy in that “time, read diachronically, is one of its essential prerequisites” and shall be “understood as the rightful interest of every person not to be exposed, indefinitely, to the further damage to his honor and reputation that the repeated publication of a piece of news lawfully spread in the past can give origin to”. Therefore, “unlike the right to privacy, [the right to be forgotten] is not intended to preclude the disclosure of news and facts belonging to the intimate sphere of the person and kept confidential until then, but rather to prevent that facts already lawfully published, and therefore no longer private, being recalled”. An important aspect of the right to be forgotten is that the passage of time may change the individual and, thus, “the republication of a news already disclosed in the distant past may confirm an image of the person, which is different from the new one, to the detriment of the personal identity and reputation that goes with the new image” that the person has built for him or herself.
The Court noted that the content of the right to be forgotten naturally follows from a correct and logical application and interpretation of the right to inform: if information regarding an event shall not be disclosed at the time when the event happens because there is not a public interest in its knowledge, similarly a piece of information cannot be republished which – though originally relevant – is no longer of interest to the public.
The Court identified a further, dynamic element of the right to be forgotten in that it is connected to the evolution of digital technologies and global online networks, and noted that the increasingly easy ability to share one’s personal data is associated with the right to govern (and so to erase or block from circulating) that data. This right was expressly recognized by Italian Legislative Decree n. 196 of 2003 (see Article 7), and the EU General Data Protection Regulation (Regulation UE n. 2016/679; “GDPR”). The right to be forgotten found explicit formulation in the Article 17 of the GDPR which establishes that “The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay where one of the following grounds applies: (a) the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed”. The right may be limited “(d) for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) in so far as the right referred to in paragraph 1 is likely to render impossible or seriously impair the achievement of the objectives of that processing”. When archiving comes into play, what is relevant in the evaluation of the right to be forgotten is not the passage of time between the moment in which the information was lawfully shared and the moment of republication, but rather the permanence of the piece of news in the virtual space of the online archive.
The Court identified two matters of relevance: 1) Whether storing the article for historical purposes in the archive constitutes data processing compatible with the purposes for which such data were originally collected, (that is, whether there still existed a public interest in the knowledge of the information); and 2) Whether there is an appropriate and proportionate remedy, to ensure the right balancing between the right to inform and the right to be forgotten.
The Court referred to Articles 4, 11 and 99 of the Legislative Decree n. 196 of 2003 which provide a) that archiving news for historical purposes constitutes data processing which is compatible with the original journalistic purpose; b) that such processing may be carried out “even beyond the period of time necessary to achieve the different purposes for which the data were previously collected or processed”; and c) that the concept of “historical purposes” shall be interpreted broadly and that it allows “documentation of pictures, facts, and circumstances of the past”. Accordingly, the Court held that the archiving activity of a newspaper is constitutionally protected, in that it is a manifestation of the right to freedom of expression and to inform (Article 21) and of the right to research (see Article 33). Therefore, the right to be forgotten may result in the erasure of an article only if such article is not truthful but where the article is indeed truthful, the person cannot obtain its erasure from the historical online archive – equivalent to ripping off a page of the copy of the newspaper stored in a physical archive.
The Court noted it must be considered that the indexing of the content of a historical online archive exposes a person involved to unlimited and non-contextualized access to that piece of information, via general search engines, whereas within the digital news archives are organized diachronically and contextualized.
The Court referred to the Google Spain case which had concluded that “the operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful”. The Court held that the present case fell within the scope of the Google Spain ruling.
The Court held that the lower court had failed to assess whether one year and eight months – the time passed between the moment of the plea bargain and that of Mr. S.A.’s action before the Court – was long enough to give origin to the right to be forgotten, and if it had, it should have further balanced the right to be forgotten with the right to inform and be informed and verified whether an interest of the general public in being made aware of the information remained. The Court also held that the lower court had not taken into consideration the measure of de-referencing, which would have constituted a proportionate remedy.
Accordingly, the Court reversed the ruling of the Court of First Instance of Pescara and restated the following principle: “The right to be forgotten is the right of every person not to be exposed, indefinitely, to a misleading image of oneself which no longer corresponds to reality, to the detriment of reputation and privacy, deriving from the republication or the continued availability to the general public – after a significant period of time – of an information regarding facts of the past. The right, in its dynamic version, consists in the power of the data subjects to control the processing by third parties of their personal data”.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In overturning the lower court’s decision to remove the article from the archive and instead order its de-indexing from search results, the Court expanded the access to information and protected historical news records.
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