Case Summary and Outcome

The Italian Supreme Court held that the right to be forgotten did not trump a legislative obligation to list the history of a property in a public register. An individual who had discharged his debt in respect of a mortgage on immovable property – but had missed some repayments – sought to have that history removed from the public record as he argued it would damage his credit reputation. The Court of Appeals had dismissed the individual’s application, and the Supreme Court confirmed that finding, holding that there was a legal provision governing the collection and publication of details of a property’s history and accepting the individual’s request for his right to be forgotten would have falsified that history. The Court emphasized that a legal obligation for the disclosure of personal information outweighs an individual’s right to be forgotten.

Facts

An Italian judicial mortgage had been registered against R.M.R. and in favor of the bank Monte dei Paschi di Siena S.p.A. Although R.M.R. had failed to pay several installments of the mortgage that the bank had granted him, once he had complied with his obligation and paid the debt, he requested the lien to be cancelled. An “Ipoteca” (lien), in Italian private law, is a particular type of collateral security which can have immovable property as the object. A lien is always registered, so that it is possible to track the history of the immovable property. When the debtor is freed from the debt, the lien can be cancelled from the register upon request of the debtor. According to the law, the lien shall be cancelled by means of an annotation which also indicates the title legitimating the cancellation. Specifically, Article 2886 paragraph 2 of the Italian Civil Code provides that the cancellation or correction of the registration of the lien shall be done on the margin of the entry (in the register) indicating: 1) the title that permits or ordered the cancellation; 2) the date of the cancellation; 3) the signature of the registrar.

Following the cancellation of the lien, R.M.R brought an action against the Agenzia del territorio (regional tax department in charge of the cancellation) before the Court of First Instance of Massa Carrara. He requested 1) that the way in which the cancellation had been done be declared unlawful; and 2) compensation damages for the violation of his right to personal image, his right to privacy, and his right to be forgotten. The Court of First Instance rejected his request, and the Court of Appeals of Genoa upheld the substantial content of the ruling.

R.M.R. then appealed to the Supreme Court.

Decision Overview

The central issue for the Supreme Court’s determination was whether R.M.R had a legal basis for his claim.

R.M.R. argued that the way in which the Agenzia had completed the cancellation (via annotation) was in breach of his constitutional right to be forgotten, in that it made public the fact that, in his past, he had failed to comply with his debt with the bank. He claimed that the annotation impaired his chances to obtain credit in the future and insisted that his constitutional right to be forgotten should have prevailed over the provision of Article 2886 paragraph 2 of the Italian Civil Code.

The Court referred to its case law and in particular a case which had gone to the Court of Justice of the European Union (CJEU), Camera di Commercio, Industria, Artigianato e Agricoltura di Lecce v. Salvatore Manni. In that case the manager of a company which had been declared insolvent claimed that his right to be forgotten had been violated by the presence of his name in the Italian Companies Register, and that the association of his name to the bankruptcy would have prevented him from selling a real estate complex he had built after that bankruptcy. The CJEU had held that the purpose of disclosure of personal data in the Companies Register was to “protect in particular the interests of third parties” and so third parties must be able to ascertain particulars of “persons who are authorized to bind the company”, and that there was no European-wide time limit for when disclosure is no longer necessary following a company’s dissolution. However the CJEU stated that this is not a disproportionate limit of individuals’ rights to private life and to protection of personal data, particularly in respect of individuals who had been given power in respect of a company, and that individual member states can determine whether access to that personal data can be limited. Accordingly, the Supreme Court had held in that case that it weighed the needs of disclosure over the interest of the private individual to prevent it, as disclosure on the Companies Register has the purpose to ensure certainty in commercial relations. The Court applied that reasoning to the present case.

The Court held that the fact that the R.M.R.’s immovable property was subject to judicial lien was not – in any way – damaging to his reputation, in that the very cancellation of the lien via annotation on the register testified that he had complied with his obligation and paid his debt. It found that the act of registration of the lien in a public register gives origin to the collateral security (in Italian, it has “natura costitutiva”) and so simply “scraping off” the registered lien, without a formal annotation, would eliminate the collateral security ex tunc and would falsify the events by creating a tabula rasa. The Court noted that R.M.R.’s reference to the European Union’s General Data Protection Regulation (GDPR), Regulation UE 679/2016, and to the right to be forgotten was incorrect as the GDPR did not apply and, in any event, it provided that the right to be forgotten cannot be granted when the processing is necessary “for compliance with a legal obligation which requires processing by Union or Member State law to which the controller is subject or for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller.” The Court also held that R.M.R.’s reference to the Italian Legislative Decree n. 196 of 2003 (“Code of Privacy”) was also misplaced as the Decree did not provide expressly for a right to be forgotten, but (before the GDPR) the existence of the right was established by the case law, and when the Court did declare the existence of a right to be forgotten, it did so as a result of a balancing exercise between different rights. The Court commented that a balancing exercise in this case would have disfavored R.M.R. due to the existence of a legal norm providing for the need to disclose personal data to protect a public interest.

Accordingly, the Supreme Court rejected R.M.R.’s action and confirmed the ruling of the Court of Appeals of Genoa.