Privacy, Data Protection and Retention
Google Spain SL v. Agencia Española de Protección de Datos
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The Italian Supreme Court rejected a request to remove a newspaper article detailing the criminal convictions of an Italian businessman from an online news archive. The businessman’s son had sought the removal of the article or the inclusion of an annotation detailing a later absolution of the conviction. The Italian Data Protection Authority and the Court of First Instance of Milan had rejected the son’s requests, and he appealed to the Supreme Court. The Court acknowledged the right of the public to be informed of matters of public interest can be limited by an individual’s right to protection of their personal data, but held that removing the article from the archives would be a disproportionate limitation of right to inform. It held that de-indexing the article from search results would be proportionate.
An Italian entrepreneur, P.P. had been convicted in a Court of First Instance on criminal charges but later had his conviction overturned by the Court of Appeals of Brescia in October 2001. RCS Mediagroup had published two articles about the conviction and these articles remained accessible online. P.P.’s son, P.M.F., brought an action before the Italian Data Protection Authority against RCS Mediagroup, asking the Authority to order the erasure of two articles from the website of the newspaper of the company, or, in the alternative, the update of the content of the articles and implementation of “special technical measures” directed at impeding the general public from accessing the articles via the normal search engines (“de-indexing”). P.M.F. argued that those articles presented a partial truth as they did not clarify that the convictions were later absolved and so their existence in the historical online archive of the newspaper was detrimental to the memory, honor, dignity and reputation of his father and his family which was still in charge of his company.
The Italian Data Protection Authority, with ordinance n. 196/2011, held the requests to lack any legal basis and did not proceed with the de-indexing of the articles from the general search engines, on the grounds that P.M.F. had failed to provide sufficient evidence.
P.M.F brought an action against the Authority’s decision before the Court of First Instance of Milan and, again, requested: 1) the erasure of the articles from the historical online archive of the newspaper, 2) the anonymization of the personal data contained in the articles and, finally, 3) the update of the content of the articles with regards to his father’s absolution by the Court of Appeals of Brescia in 2001. Although one of the articles had been deleted, and the other had been partially updated, P.M.F. did not revoke his action. The Court of First Instance held that the second article could no longer be found via the general search engines, but was visible exclusively to those users who were already navigating the historical online archive of the newspaper, and so de-indexing was therefore not necessary. With regards to the request to delete the article from the historical online archive of the newspaper, the Court observed: “when the right of the data subject to control and to block their personal data derived from journalistic sources needs to be balanced with the conflicting right to be informed and to inform, the immense availability of information contained in the newspaper archive must be taken into preeminent account, subordinating the constitutional right of the public to information and knowledge exclusively when in presence of severe detriment, or the risk thereof, to be identified in a non-amendable compromise of one’s own life as a result of the permanence of the personal data in the historical archive and of its potential disclosure”. Accordingly, the Court ordered the de-indexing of the newspaper article from the archives.
P.M.F. appealed the Court’s decision before the Supreme Court. Both the Italian Data Protection Authority and RCS Mediagroup appeared on appeal.
The central issue for the Supreme Court’s determination was whether P.P. had a right to be forgotten and, if so, what the appropriate remedy would be.
P.M.F. maintained that the lower court was incorrect and that the second article was still accessible via the general search engines. He argued that the lower court had incorrectly held that the information included in the article was of public relevance, and submitted that the article referred not to P.P.’s economic activity but rather to his involvement in a judicial matter with regards to which there was not a particular interest of historical, educational, or cultural nature. P.M.F. submitted that P.P.’s right to be forgotten, under Article 2 of the Constitution, should have prevailed.
The Court recalled that the right to be forgotten officially appeared in case law in 1998, in Decision n. 3679/1998, when the Supreme Court had highlighted “a new profile of the right to privacy, recently redefined as the right to be forgotten, which is 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”. That judgment had specified that “when the event of the past becomes relevant again, due to supervening facts, a renewed public interest is revived, which may be decoupled from the contemporaneity between disclosure and the public fact”, and the Court emphasized that this aimed to balance and reconcile the right to be forgotten with the right to inform. The Court noted that in 2003 Legislative Decree no. 196 of 2003, Article 11(1)(e) set out the obligation to store data in a form that allows identification of the person concerned for a period not exceeding that necessary for the pursuit of the purposes intended at the time of collection or in the subsequent development of the data processing. The Court commented that this provision should be read in conjunction with Article 7(3)(b) which grants the data subject the right to request the erasure or transformation of his personal information. The Court describes this law as developing the “right of online freedom” as a negative freedom, in the right to be forgotten, and as a positive freedom, as the power to control their personal data.
The Court stated that the right to be forgotten “has now to deal with the internet (…), where there is unlimited memory and where everything remains online, in a global data storage that has been defined – through a metaphor – as a collection of ‘isolated book pages, stored in a thousand different libraries’”. As a result, in the past the right to be forgotten was threatened by the re-publication of a piece of news belonging to the past, now, due to new technologies, data subjects are threatened by “the permanence of information” online, and so a person might have the interest (and the right) to request the erasure of their personal data from the internet when the purposes for which the data were collected have been exhausted. The right to be forgotten, in this context, is specifically referred to the right to see one’s personal data erased, and a request to erase the data can be addressed to whom originally made public the data, to those in charge of the archives storing the data, to search engines, and to anyone who makes public the data, either directly or indirectly.
The Court examined the evolution of the right to be forgotten and noted that it was originally connected to the right to privacy, understood as the right not to see a person’s private and family life, and the intimacy connected to particularly detrimental or painful events, made public after an extensive period of time, but that new technologies have necessitated the need to protect a person’s interest in the control over his or her personal data, which had lawfully left the personal sphere. It distinguished between the right to protection of personal data and the right to privacy, and the evolution from the “right to be left alone” to the right to freely have control over one’s personal data. The Court concluded that the right to be forgotten has changed and it is no longer a right belonging to the few who appeared in the news (politicians, famous persons, etc.), but belongs to everyone who seeks to protect their personal data. The Court also described the right as “dynamic” as it includes the right to protection of one’s personal identity over time, and as a right to informative self-determination. The Court stated that every citizen “has the right to be represented, in his or her relational life, with his or her own identity and, thus, ‘not to see altered from the outside his or her intellectual, ethical, ideological, and professional identity’”: a person has the right not to see his or her image distorted from the outside.
The Court referred to the European Union Court of Justice case of Google Spain v. AEPD and the European Court of Human Rights cases of Fuchsmann v. Germany and Magyar Jeti Zrt v. Hungary. It also mentioned the Italian Supreme Court United Sections case, n. 19681/2019 which had identified three scenarios connected to the right to be forgotten: the wish of a person not to see republished a piece of news which was lawfully disclosed in the past, after a significant period time has passed; the use of the internet and the possibility to find news online and the need to contextualize the piece of information; the case in which a data subject exercises his or her right to the deletion of his or her personal data.
In applying the principles to the present case, the Court identified the key issue as being whether, due to their specific historical nature, online archives cannot be “amputated” of their content, because they would no longer be complete. The Court stressed the dynamic dimension of the right to be forgotten, understood as pertaining to the category of the right to protection of personal data (rather than to the more generic right to privacy), and extended this to the need to interpret its protection in context, including the technological developments of a particular era, and the characteristics of those technologies (e.g., the way they spread information). The Court stated that “it is not possible to create a reduction ad unum of the right to be forgotten”. The Court accepted that different standards apply to different cases and found that the Court of First Instance of Milan correctly balanced the right of the individual with those of the general public. The criteria to be considered were that 1) a “reasonable compromise” can be found in the de-indexing of the article from the general search engines as this means the article remains available exclusively in the online historical archive and can be accessed via the internal search engine of the said archive, protecting the data subject against random or futile online searches; 2) the compromise applies even when the information is still of public interest which persists not only when the piece of news is still relevant timewise, but also when it is relevant for documentary and preservative purposes which are served by the historical archive; 3) when the right to have control over one’s personal data, the right to be forgotten, and the right be informed need to be balanced, the right of the general public to be informed (see Article 21 of the Constitution) shall prevail when the personal data is processed correctly, i.e., when it persists (timewise) the public’s interest in knowing, and when the information is correctly updated; 4) it is not correct to assume that the right to be forgotten originates in the passing of the data subject; and 5) it is not correct to assume that with the passing away of the data subject coincides with the end of the public’s interest in being informed about the information concerning the subject, nor is it correct to assume that the mere passing of time causes the expiration of the interest in the knowledge of the piece of news because if this criterion applies then every newspapers’ historical archive would not have reason to exist.
In summary, the Court stated that the right of the general public to be informed can be limited when the data subject’s rights and relational life are disproportionately harmed by the permanence of the personal data in an online historical archive which potentially allows for unlimited accessibility to the information and so differs from a physical archive.
The Court of First Instance had noted that information had been disclosed in relation to P.P.’s involvement in a criminal judicial proceeding concerning his activity as a prominent entrepreneur – at the European level – in his field, and so the decision to keep alive the memory concerning his involvement was justified because of his economic role in society. That Court had held that it could not be denied that there was a public interest in being made aware of a matter involving a leading actor in the national economic system. That Court had rejected P.M.F.’s request that RCS Mediagroup update the article with an annotation on his father’s absolution as it stated that P.P. had not been fully absolved, but that some of the offences were statute-barred. That Court had concluded that the de-indexing of the article sufficed and appropriately balanced the conflicting interests at play: the information was still accessible, but only via the newspaper’s archive’s search engine.
The Supreme Court accepted the Court of First Instance’s legal reasoning and noted that although the General Data Protection Regulation (Regulation (EU) 2016/679) cannot be applied in this case because it only came into force later, it is interesting to note that Article 89(1) of the GDPR gives particular relevance to archives established for public interest, scientific and historical research purposes or statistical purposes and Article 17(3)(d) permits the limitation of the right to be forgotten for archiving purposes.
The Court held that the Court of First Instance had used legal criteria compatible with the need to preserve information of historical relevance, due to the legitimate interest that the public had in them. In respect of P.M.F.’s submission that the Court of First Instance erred in saying that it was no longer possible to find the article via the general search engines, the Court noted that now the search engine offered only an access to the historical archive of the newspaper (lawfully) storing the web page and so there is no direct connection from the search engines to the article (the search engines lead, instead, to the archive within which the article can be found).
Accordingly, the Court upheld the decision of the Court of First Instance and rejected P.M.F.’s appeal.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court established that, while deleting the article from the historical archive would disproportionately hurt the interest of the general public and its right to be informed, de-indexing them would create a good balance between such right and the right to be forgotten of the person involved.
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