Privacy, Data Protection and Retention
Google Spain SL v. Agencia Española de Protección de Datos
Closed Contracts Expression
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The United Sections (“Sezioni Unite”) of the Italian Supreme Court held that a newspaper had violated the right to be forgotten of a man convicted of murder 27 years previously by publishing an article about the murder and enabling the murderer’s identification. After the Court of First Instance in Cagliari and the Court of Appeals of Cagliari had found in the newspaper’s favor, the Court distinguished between the right to inform, particularly of new facts in the public interest, and the historical re-evocation of facts of the past as in the present case. The Court held that a subject of a past event that had been lawfully reported on has what could be called “a right to keeping the dishonor secret.” Hence, any re-evocation of the past without connection to current events must be done by anonymizing the person involved when this person does not play a relevant public role.
An Italian man, S.G., brought an application against the Italian newspaper l’Unione Sarda s.p.a., after it published an article, written by journalist C.M.F. about S.G.’s murder of his spouse, 27 years earlier. S.G. had served twelve years in prison.
Before the Court of First Instance of Cagliari, S.G. sought monetary and non-monetary damages from the newspaper and journalist, arguing that the article not only was damaging to his business, his image and his reputation, but it also provoked in him a state of severe anxiety. S.G. submitted that his right to be forgotten had been violated by l’Unione Sarda and C.M.F., and that he had served his prison term and had successfully reintegrated himself into society, in particular through his work as an artisan.
l’Unione Sarda and C.M.F. argued that there was no violation of the right to be forgotten, and that the article was part of a weekly series regarding crimes of the past which had shocked the small community of Cagliari
The Court of First Instance of Cagliari rejected the action, and S.G. appealed to the Court of Appeals of Cagliari.
The Court of Appeals upheld the previous decision. It found that the article was part of a series devoted to nineteen crimes from Cagliari which had been vastly debated in the community, and that S.G.’s crime had not been described in misleading or “spectacular” terms and his name did not feature in the title but only in the body of the text. The Court noted that the article, read as a whole, identified that the crime was the result of a problematic familial environment and that, in light of this, the Court which found him guilty had showed particular compassion. Accordingly, the Court held that no offence had resulted from the publication, and that S.G.’s right to be forgotten did not – in this case – prevail over the right to inform. The Court stated that the publication of the article was not motivated by the “mere intention to instrumentally ‘fill in’ a page of the Sunday edition”, but rather “to offer, within the context of a well-structured series, a place for the readers to reflect upon difficult matters such as social marginalization, jealousy, depression, and prostitution, with all the implications that these realities can have on daily life.” This meant that there was not a desire “to newly and detrimentally condemn through the media S.” and the publication was lawful and “fell indisputably within the right to inform, freedom of press and freedom of expression”. The Court concluded that the right to inform, “if duly inserted within an organized editorial context, can never be considered overcome”, in that “time does not delete everything and memory, although raw and cruel, may in fact play a social role”.
S.G. appealed to the Supreme Court, arguing that the Court of Appeals judgment violated various constitutional rights. He submitted that the effect of the Court of Appeals judgment was that the right to inform would have always prevailed over his right to be forgotten which is protected by Article 2 of the Constitution. He maintained that he had never claimed the article was offensive in nature, but that there was a need to evaluate the lawfulness of the publication, after 27 years, of an article which clearly described the tragic crime and allowed for the easy identification of the murderer. S.G. also argued that the Court of Appeals had interpreted Article 21 of the Constitution (the right to freedom of expression) in a way that would violate his right to equality, protected by Article 3 of the Constitution. He stressed that although he had, indeed, committed the crime, he had also served his sentence and was then successfully reintegrated into his social context and submitted that the publication compromised his reintegration, and violated his dignity and his right to be treated equally to other citizens. He also submitted that the Court of Appeals judgment violated Article 27, paragraph 3, according to which: “Punishments may not consist of treatment contrary to humanity and must aim at the re-education of the sentenced person”, and argued that the publication, after almost thirty years from the event, of an article regarding his crime constitutes “an inhuman punishment, for any person, however guilty of a serious crime”.
S.G. also argued that the Court of Appeals judgment violated Article 7 and 8 of the Charter of Fundamental Rights of the European Union, which protect the right to respect for private and family life and the right to protection of personal data.
On November 5, 2018, with ordinance n. 28084 of 2018, the First President of the Court assigned the case to the United Sections due to the particular relevance of the case and the need to establish precise boundaries between the right to be forgotten and the right to inform. In Italy, a case is decided by the Supreme Court’s United Sections (Sezioni Unite della Corte di Cassazione) when it touches upon particularly relevant or sensitive legal principles regarding which there has not been a precise precedent as different Sections of the Supreme Court have ruled differently on the same topic, and so this “conflict” needs to be solved by the United Sections.
The United Sections delivered a unanimous judgment. The central issue for the Court’s determination was whether, in the circumstances, S.G., had a right to be forgotten.
The Court set out the relevant constitutional provisions – Articles 2, 3, and 21 of the Italian Constitution which protect inviolable human rights, the right to equality and the right to freedom of expression – and the international human rights provisions – Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms which establishes the right to respect for private and family life, and Article 7 and 8 of Charter of Fundamental Rights of the European Union, which protect the right to respect for private and family life and the right to protection of personal data. The Court also referred to Article 16 of the Treaty on the Functioning of the European Union, on the right to the protection of personal data, and to the European Union General Data Protection Regulation.
The Court discussed the evolution of the Supreme Court’s case law on the right to inform and on the right to be forgotten. It explained that the requirements to be satisfied in order for a lawful exercise of the right to inform have historical roots, having first been defined in Decision n. 5259/1984, but that the right to be forgotten only officially appeared in the case law in Decision n. 3679/1998. In that 1998 case, the Supreme Court 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 1998 ruling 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”. The Court identified that with the 1998 ruling the Supreme Court specifically differentiated the right to be forgotten from the broader right to privacy (whose definition can be found in Decision n. 2129/1975).
The Court also referred to Decision n. 5658/1998, which stated that the right to privacy is broader than the right to reputation, and the right to inform will take precedence when 1) the piece of information shared is true; 2) there is a public interest in the knowledge of the fact (so-called “relevance”); 3) the facts are illustrated in a form which does not harm the honor of the person or entity involved. It also mentioned Decision n. 10690/2008 which stated that it is a violation of the right to privacy when a person has their private life publicly disclosed and that that constitutes a civil wrong under Article 2 of the Italian Constitution. The Court noted that Decision n. 17408/2012 had established that a newspaper may disclose private sensitive information when it is “essential” and Decision n. 12834/2014 had stressed that publication of images of a person’s arrest must respect their dignity. In respect of publication of historical information, the Court noted that Decision n. 5525/2012 stated that the interest of the individual not to be indefinitely exposed to the disclosure of information in online archives needs to be balanced with the historical, cultural, and educational interest of the public in the knowledge of the event, that Decision n. 16111/2013 had stated that the disclosure of facts which may be historically relevant is not justifiable if the circumstances of the recent publication are entirely different and disconnected from the past event, and that Decision n. 6919/2018 had held that the passing of time alters the relationship between the two conflicting rights to inform and to be forgotten and so (unless the subject remains a person of public interest) “the publication of information regarding a specific person, at a distance of time from facts and events concerning him or her, cannot but constitute a violation of the fundamental right to be forgotten”.
The Court also referred to the European Court of Justice case of Google Spain v. Agencia Española de Protección de Datos – which established the right to be forgotten – and the European Court of Human Rights case of Fuchsmann v. Germany – which had held that the right to be forgotten was not violated when it was in the public interest for facts to be published.
The Court distinguished three scenarios that can be connected to the right to be forgotten: 1) the wish of a person not to see a piece of news which was lawfully disclosed in the past republished after a significant period time has passed; 2) the use of the internet and the possibility of finding news online and the need to contextualize that news; and 3) a data subject exercising his or her right to the deletion of his or her personal data. The Court noted that the present case fell under the first categorization.
The Court characterized the publication, after a long period of time, of news which had been published in the past as being the exercising of the right to historical re-evocation of past events rather than of the right to inform. It commented that the Italian expression “diritto di cronaca” (i.e., right to inform) “finds its etymology in the Greek word Kpovoc which means ‘time’; thus, this means that the right has as its object the disclosure through the press or other media, of a piece of information regarding that specific moment in time and hence connected to a determined context”. The Court acknowledged that intervening events could make the past event newly topical, “in the absence of those circumstances, republishing a news item from the past, even if it was of certain relevance at the time, constitutes an expression of historiographic re-evocation that cannot enjoy the same constitutional guarantee as the right to inform.” It also acknowledged the “precious” role that historiographic activity plays in the history of a country and of a community, but highlighted the difference between history and the report of new events, and said that historical re-evocation of facts of the past such as in the present case must be done by anonymizing the person involved when this person does not play a relevant public role. The Court stressed that in this case the public does not have any further interest in being made aware of the personal data identifying the person who committed the crime.
The Court noted that while the appropriateness of the choice to expose the identity of the person involved can be the subject of judicial review, this is not true of the editorial choices made by the newspaper as that is the highest manifestation of press freedom protected by the Constitution. Thus, the Court could not scrutinize l’Unione Sarda’s choice to publish a weekly series on the crimes that have shocked the community of Cagliari.
The Court held that a subject of a past event that had been lawfully reported on has what could be called “a right to keeping the dishonor secret”. The expression clearly indicates that the piece of news over which the person would regain control may be particularly shameful and of such nature to justify the wish to have silence about it.
With respect to the present case, the Court held that the Court of Appeals erred for two reasons: it mistook the right to the historical re-evocation of past events with the right to inform; and it mistakenly overlapped the interest of the public in the historical re-evocation with its interest in the knowledge of the precise identity of the person who committed the crime (which was, instead, irrelevant). The Court added that the Court of Appeals had failed to consider S.G.’s rehabilitation.
Accordingly, the Court reversed the rulings of the Court of First Instance and of the Court of Appeals of Cagliari. It stated that “on the subject of the relationship between the right to be forgotten and the right to historical re-evocation of past events, the judge – without prejudice to the freedom of the newspaper to choose its editorial line, which is the expression of press freedom and freedom to inform (Article 21 of the Italian Constitution) – shall assess whether there exists a concrete and current public interest in mentioning the elements identifying those involved in such events. The mentioning of such elements can be considered lawful exclusively if it refers to persons who are of interest to the community at the present time, whether because of notoriety or because of the public role these persons play; otherwise, it must prevail the right of the persons involved to privacy regarding past events which hurt their dignity and honor, and regarding which the collective memory has passed (in this case, a murder that happened twenty-sever years earlier, the person responsible for which had served the relevant time in prison, then reintegrating positively into society)”.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In finding that an individual’s “a right to keeping [past] dishonor secret” and stressing that when a person is no longer of public interest and the memory of past events has left collective memory, the Court held that an individual’s right to be forgotten outweighs the right to inform.
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