Case Summary and Outcome

Italy’s Supreme Court of Cassation held that the “public interest” in an article diminished after two and a half years and that sensitive and private information should not be available to the public indefinitely. The case concerned an individual who was involved in a criminal incident in 2008 and in 2010 demanded an online newspaper, PrimaDaNoi, to take down an article describing the 2008 incident.  The newspaper initially rejected his request, but complied six months later. However, the individual still sought compensation for the newspaper’s failure to comply with his request for six months. Relying on Google Spain guidelines, the Court found that although the article was published lawfully, it satisfied its public interest purpose and allowing access to it disproportionately impacted the individual’s privacy.

Facts

In March 2008, four individuals got into a fight outside a restaurant in Pescara, Italy. One of the individuals was the owner of the restaurant. During the fight, an individual was stabbed. Police arrived at the scene and arrested those involved. PrimaDaNoi.it, an online news publication, reported the story.

In September 2010, the restaurant owner requested ​PrimaDaNoi.it to take down the article. He explained that the article was one of the top search results for his or the restaurant’s name. However, according to him the information in the article was outdated, and he asked the article to be taken down. PrimaDaNoi refused the take down request.

In October 2010, the restaurant owner sought a judicial take down order on the grounds that the presence of the article online perpetually harmed his reputation, despite there being no public interest in the article. In May 2011, before the case was heard, PrimaDaNoi voluntarily took down the article in hopes that it would quash the litigation.

Nonetheless, the restaurant owner continued with the litigation, arguing that it took the PrimaDaNoi six months to comply with his request, during which he suffered harm to his reputation.

The first instance court ruled in favor of the restaurant owner. It found that two years had passed from the date of the article’s publication to the date of the take down request, and that this period of time was enough to satisfy the “public interest” in the right to report (​diritto di cronaca). The court thus ordered PrimaDaNoi to pay 10,000 EUR in damages.

PrimaDaNoi appealed the decision to Italy’s highest court – the Court of Cassation.

Decision Overview

The Supreme Court of Cassation (Court) upheld the lower court’s findings. Since PrimaDaNoi already deleted the article, the Court did not specifically order the de-indexing or deletion of the article. Instead, it focused on the diminishing newsworthiness and public interest value of certain categories of information over time, and whether PrimaDaNoi was liable for allowing access to personal information after the newsworthiness of the article was diminished.

The Court found that providing direct and easy access to the old article, and its continued spread on the internet, was unlawful as of 2010 (when the online newspaper received the request to delete this publication). It reasoned that the continued publication and spread on the internet of the news item could not be classed as lawful processing or collecting of journalistic data for historical or editorial purposes.

The Court referred to EU Guidelines that were adopted after the Google Spain judgment (i.e. the judgment establishing precedent for de-indexing certain search results pursuant to data protection law). These Guidelines stated that “[e]ven when (continued) publication by the original publishers is lawful, the universal diffusion and accessibility of that information by a search engine, together with other data related to the same individual, can be unlawful due to the disproportionate impact on privacy.” Although these guidelines have been applied to search engines, the Court held that they could be applicable to publishers.

The Court also referred to an Italian case from 1998 that stated that a piece of news must be true, complete and topical before it can be reported: this meant it was not lawful to spread news again after a long period of time since the story first broke. (Corte di Cassazione, judgement No. 3679, delivered April 9, 1998)

The Court considered that, in this case, two and half years was enough time to satisfy the “public interest” in reporting the story. The Court agreed with the lower court that the “public interest” was served by the fact that the story was available in a local newspaper with high readership and that the article was available online for two and a half years.

The Court also dismissed PrimaDaNoi’s defense that the criminal case in question was still pending and, as a result, there was a “public interest” in having the article available to the general public. The Court opined that where there was no final judgment concerning the criminal incident in question, and there were no new developments to the story, then the “public interest” in the article diminished.

The Court accepted the importance of the right to report, but held that sensitive and private information should not be available to the public indefinitely (unless the publisher receives consent to do so from the concerned person). The Court upheld the 10,000 EUR in damages against PrimaDaNoi.