With sentence no. 3952 of February 8th 2022, the Italian Supreme Court of Cassation expressed again its opinion on the right to be forgotten, restating the need to find a precise balance between the right of the interested party to be forgotten and the right to publication and acquisition of information.
The case concerned the request, addressed to the provider of a well-known search engine, to remove from the online search results several URLs connecting the name of a user to a court case. In particular, the appellant pointed out that the search engine associated his own name to a financial failure which back in time had been object of media interest but now had become alien to the right to report.
The Italian Data Protection Authority (DPA) had accepted the request, ordering the provider to remover the URLs linked to the story where the interested party was involved and to cancel also the cache copies of the pages accessible from the above-mentioned URLs. The provider presented an appeal against the decision of the DPA, asking for the annulment of the part demanding the cancellation also of the cache copies of the web pages.
The Italian Supreme Court of Cassation, which was called to rule on the case, accepted the reasons of the search engine provider, clarifying the conditions of the right to be forgotten and how to exercise it.
Preliminarily, the Supreme Court points out that the Italian DPA was addressed to remove, from the Internet search results, the URLs connecting the name of the interested party to the event which saw him as protagonist of many news articles.
This request – the Court points out – was therefore a request of de-indexing, that is an appropriate measure to exclude that the name of the subject would appear among the results of a search conducted starting from the name of the subject. In other words, the de-indexing does not completely eliminate the information, but it avoids that by searching the name of the person returns a list of results connected to that information. Therefore, the data is not eliminated but a particular way of data searching is eliminated. The data is still present in the web and accessible through a more complex and precise search, for example by reaching the website which hosts the information (i.e., source website) or by using other keywords for the search.
However, the Italian DPA did not only had arranged the de-indexing, but also the elimination of the cache copies of the pages accessible through the URLs of the articles relating to the event. This elimination, in brief, would have entailed the definite cancelation of the content, with the consequent impossibility for the provider to index it and the impossibility for the users to reach it.
The Court considered that the cancellation of the cache copies was not appropriate to guarantee the right balance between the interest of the subject to be forgotten and the interest of the public to be informed.
The matter assumes a central importance in the current context. The coming of the digital era allows to find news and information with extreme ease, even old ones. This advantage, however, is accompanied by the risk of being forever associated to facts which do not have anything to do with the subject identity anymore: because if, on one hand, it is true that information archived in computer media remains static and unchangeable, it is not true, on the other, that the identity of a person remains attached to the representation that the collective memory has built because of the crystalized data on the web.
On this regard, the Court stated that de-indexing can represent the point of balance between the interests involved, because the “interest to know the information regarding the fact is protected through the access to the website, or to its copy, which is carried out through other keywords; but, at the same time, the personal sphere of the involved subject is protected, because the indexing exclude that the internet user can learn the historical fact as a result of a nominative search which points to other results or that is animated by a mere curiosity for life aspect of others which the interest subject wants to keep private”.
On the contrary, the total cancellation of the news from the web represents an extreme solution, which must be arranged only after having evaluated and weighted attentively all interests involved.
Ilaria Feriti