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In this article, we address the right to be forgotten i.e. the right to obtain the removal of content that concerns us from the Web. More specifically, in this article we will focus on:
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Hardly any memory is more infallible than that of the Internet. Just by typing a person’s name and surname into Google, you can instantly retrieve plenty of information: photos, videos, press reports, reviews and comments. Many contents, even very old ones, remain available to anyone who searches for them indefinitely. Well, through various procedures, it is possible to obtain the removal of content about us when it is detrimental to our reputation or when its presence on the Web does not meet a real public interest.
The right to be forgotten is therefore understood as the right to no longer be remembered even for past events that concern us but are no longer of public interest because they are no longer current. This right protects everyone’s privacy, preventing anyone from easily retrieving information about us on the Internet that we would like to keep hidden. We now analyse how this need is protected by our legal system.
Imagine, for instance, the various contents on the web that contain information on facts, perhaps even true facts, that are however now considered ‘old’ (e.g. a newspaper article, a photo that portrays us in the company of other people, a work report on an activity we carried out years ago). In all such cases, thanks to the right to be forgotten, it is possible to obtain the removal or alternatively the de-indexing of information, preventing, in the latter case, the content in question from appearing in Google search results.
Everyone, after a business meeting or a first date, has probably typed in the name and surname of their interlocutor on the web to find out as much information as possible. However, when the target of the search is us, we may feel the need not to be found.
At the present time, the right to be forgotten is regulated in Italy by the Privacy Code, which provides for certain criminal sanctions for the unlawful treatment of personal data. At EU level, however, it is governed by the GDPR in Article 17(1), which expressly provides for the right to the removal of personal data under the following conditions:
This means that in order to obtain their removal, it is sufficient to oppose their publication (and/or online storage) when they are no longer in the public interest. There are still critical points, however, which are to define:
As to the first point, it is necessary to keep in mind that while on the one hand the legislators protect the right to be forgotten (i.e. the right to privacy), on the other hand they do not overlook a different fundamental right: the right to report news. As a matter of fact, the law balances the so-called right to be forgotten with the right to proper information. This is precisely why Article 17(3) of the GDPR does not allow the removal of personal data when the online publication of content is the result of freedom of expression or when there are reasons of public interest that make it necessary and useful to keep the content online.
Determining whether content is in the public interest is not straightforward. The assessment involves consideration of several factors including, for example, whether the content relates to the applicant’s professional or personal life, whether the content relates to a crime (recent or past), whether the content relates to a political office or public position. In addition, it could be relevant whether the information is contained in a press or other article. Let’s proceed in order.
In the European judgment Google Spain (judgment of 13 May 2014) it was stipulated that the operator of a search engine (e.g. Google) is responsible for the processing of personal data displayed on web pages (even if published by third parties).
Should any outdated news appear online, hence be no longer of public interest, we could turn directly to Google – possibly also through an experienced lawyer – to have the news de-indexed, with the result of removing it from the top results of the search engine. This solution, which is a compromise between the right to be forgotten and the right to report news, has been worked out by the Court of Justice of the European Union and subsequent rulings by the Italian courts.
According to official Google statistics, the types of content whose removal is most frequently requested concern professional offences (16%) and professional information (12.2%) and illegal activities (10.8%) dating back in time.
Although content exists on the Web, thanks to de-indexing, it can no longer be found by the search engine. It should be noted that the latest guidelines on de-indexing by the EDPB (European Data Protection Board) are from July 2020
Alongside the de-indexing by Google, it is everyone’s right to request the removal of content directly to the authors of the content. In order to obtain removal, it is possible to contact the author of the content and/or the person responsible for the site hosting it. In most cases, of course, it is advisable a legal formal notice drafted by a qualified lawyer.
Should we want to obtain the removal of a judgment of conviction from several years ago, for instance, we could first contact the newspaper that reported the news and ask for it to be removed from the website or at least for the names to be blacked out. There are also many other web contents that are no longer newsworthy and whose removal might be legitimately requested.
It should also be mentioned that, by appealing to the ordinary courts, it is instead possible to obtain a ruling prescribing the measures necessary to achieve the aforementioned result and compensation for the related pecuniary and non-pecuniary damage.
It is also worth reporting that a recent amendment to the Cartabia bill on justice reform approved by the Chamber of Deputies establishes that decrees of dismissal, judgments not to prosecute and acquittals shall be communicated to the Privacy Authority and shall constitute grounds for issuing without delay a measure to de-index the contents related to the criminal proceedings. The purpose of the reform is clear: to make the exercise of the right to be forgotten even more automatic, at least for the types of sentences now reported.
Due to the complexity of the matter, it is always advisable to contact a qualified and experienced lawyer for both removal and de-indexing activities related to the right to be forgotten.