Defamation / Reputation, Privacy, Data Protection and Retention
Don Domingo v. Google Spain
Closed Contracts Expression
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The Italian Supreme Court held that the rebroadcasting of a video about a famous songwriter five years after it was taken was unlawful and the artist’s right not to be misrepresented outweighed the right of the public to be informed. Antonelli Venditti had issued proceedings against Italy’s main broadcaster, RAI, claiming damages for the unlawful use of his image, the violation of his right to be forgotten and the defamatory nature of comments included in the broadcasted video. Relying on the jurisprudence of the European Court of Justice and national courts, the Court listed factors to be considered in determining whether the right to be forgotten prevailed over the right to inform. It reasoned that the content of the video and the way in which it was disseminated, some five years after the event took place and as part of a TV show ranking the most obnoxious celebrities, was neither relevant for public debate nor justified by reasons of justice, public security, or of scientific or educational interest. The Court further reasoned that the comments added to the images could not be justified as satire which is dependent on a specific context, for example, for the purpose of social or political criticism, and must not result in an unjustified attack on a specific person, in this case, the denigration of an artist in order to represent him as a person who was always unfriendly.
On December 12, 2000, reporters for Italian TV show, “La vita in diretta”, surprised famous Italian songwriter, Antonello Venditti, outside a restaurant in order to interview him. Venditti refused clearly and peremptorily and a video of the scene was subsequently broadcast on the main Italian Television channel, “RAI 1”, together with a comment asking ironically why Venditti was so nervous especially since Christmas was coming and people should be in a good mood.
Five years later, on April 27, 2005, the video was broadcast again on the same TV show as the second entry in a list of the most obnoxious and grumpy characters in the show business world. The video commented on the fact that Venditti refused to be interviewed because he was not used to the limelight. As a result, he issued proceedings against the broadcaster, claiming damages for the unlawful use and for commercial purposes of his image, the violation of his right to be forgotten and the defamatory nature of the comment included in the broadcasted video.
In 2007, the Rome Court of First Instance rejected Venditti’s claim on the basis that the songwriter’s celebrity and the public’s interest in knowing about the event justified the exception to the requirement of consent for use of a person’s image under Articles 96-97 of the Law 22 April 1941, The Court also found that there was no a violation of the right to be forgotten, the broadcasting was lawful and compliant with the right to privacy and, in any event, justifiable as satire.
In 2014, the Court of Appeal upheld the decision of the Court of Rome and Venditti appealed to the Italian Supreme Court.
The Italian Supreme Court noted that the case involved a conflict between fundamental rights, namely the right to inform that which is in the public interest and an individual’s right not to be misrepresented by the publication of information which is not relevant to the public interest. The Court also noted that an individual has the right to obtain the removal from lists, archives or registers of his/her name regarding facts or events which are not in the public interest. In this regard it referred in particular to the European Court of Justice’s (ECJ) decision in Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González which established that Europeans who felt they were being misrepresented by information that was inaccurate, inadequate, irrelevant or excessive for the purposes of data processing could ask search engines like Google to delink the material. If the request was approved, the information would remain online at the original site, but would no longer come up under search engine queries. The ECJ stated that, as a rule, this “right to be forgotten” for data subjects would override not only the economic interest of the search engine but also the interest of the general public in having access to the information. Exceptions to this, for example the data subject’s role in public life, could justify the interference with the data subject’s fundamental right to privacy.
Based on the jurisprudence of the ECJ and the national courts, the Supreme Court listed factors to be considered in determining whether the right to be forgotten prevails over the right to inform: 1) the benefit of the image or the news to the public debate; 2) the effectiveness of its dissemination at the current time, for example for reasons of justice, police or protection of rights or liberties of third parties, or for scientific, educational or cultural purposes but not where the interest is merely economic; 3) whether the subject is well-known and especially when s/he is a public is a public official ; 4) the methods used to obtain the information/image which should be in accordance with responsible journalism and the ways in which it is disseminated which should not exceed the right to inform by being sensationalized or used to express personal opinions; 5) whether the subject was given prior notice and an opportunity to respond before publication.
The Supreme Court found that the lower courts had relied exclusively on Venditti’s celebrity to justify the rebroadcasting, and had not given proper consideration to the content of the video and how it was disseminated. It highlighted the clear difference between Venditti’s case and events regarding the protection of public order or personal safety where a public’s interest in knowing may exist for a long time after the actual event or become relevant again on the happening of a subsequent event. In the present case the Court considered that Venditti’s conduct rebroadcasted on television five years after the event took place was neither relevant for public debate nor justified by reasons of justice, public security, or of scientific or educational interest. Indeed, the Court said, the only interest served by the broadcasting of an ironic ranking of celebrities was the commercial interest and audience targets of the broadcaster.
The Court went on that the comments added to the images in question were not a fair representation of the songwriter but, rather, were intended to make him appear as someone who was constantly unkind and unpleasant. It did not agree with the Court of Appeal’s finding that the rebroadcasting of the video was a legitimate use of satire. According to the case law of the Italian Supreme Court, satire is a “corrosive” expression of the right to criticize, so that, unlike news, it is not necessary that the facts reported are true, since the satirical expression is based on paradoxes and metaphors. However, the Court said that this form of expression is dependent on a specific context, for example for the purpose of social or political criticism, and must not result in an unjustified attack on a specific person, in this case, the denigration of an artist in order to represent him as a person who was always unfriendly.
For these reasons, the Supreme Court dismissed the decision of the Court of Appeal and upheld the songwriter’s claims.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision contracts expression by ruling that the right to be forgotten prevailed over the right to inform.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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