{"id":1392,"date":"2023-01-09T10:35:00","date_gmt":"2023-01-09T09:35:00","guid":{"rendered":"https:\/\/www.lexcapital.it\/right-to-be-forgotten-the-right-to-freedom-of-information-cassation-and-court-of-justice\/"},"modified":"2024-05-06T13:57:42","modified_gmt":"2024-05-06T11:57:42","slug":"right-to-be-forgotten-the-right-to-freedom-of-information-cassation-and-court-of-justice","status":"publish","type":"post","link":"https:\/\/www.lexcapital.it\/en\/right-to-be-forgotten-the-right-to-freedom-of-information-cassation-and-court-of-justice\/","title":{"rendered":"RIGHT TO BE FORGOTTEN THE RIGHT TO FREEDOM OF INFORMATION: CASSATION AND COURT OF JUSTICE"},"content":{"rendered":"\n

The right to be forgotten<\/strong> is the result of the lengthy evolution of case law<\/strong> and is now expressly regulated by Regulation (EU) No 679\/2016<\/a> (the so-called GDPR) under article 17, which provides for the right of the data subject to obtain the erasure of personal data<\/strong> concerning him or her, with the corresponding obligation falling on the data controller.<\/p>\n\n

Among the most notable exceptions to this right, which leads to a delicate juxtaposition of conflicting interests, is the right to freedom of information<\/strong>.<\/p>\n\n

The recent judgment<\/a> of the <\/strong>Court of Cassation No. 34658 of 24.11.2022 provides an opportunity to analyse how the balancing of constitutionally protected rights operates in practice<\/strong>, as well as the territorial boundaries of the provisions issued<\/strong> by the Data Protection Authority.<\/p>\n\n

Indeed, the question to be resolved in this case concerns the ability of the Italian Data Protection Authority<\/strong> to issue an order requiring the de-indexing of a web address<\/strong> (i.e., making the web address inaccessible through search engines external to the archive where the content is located), with extraterritorial effect, balancing the right to be forgotten of the person concerned with the right to freedom of information of the search engine operator.<\/p>\n\n

Right to be forgotten and the case in question<\/strong><\/h2>\n\n

The case<\/strong> stems from an infringement of the right to be forgotten<\/strong> due to the “persistent dissemination on the web of out-of-date news<\/strong> about a legal matter in which [the interested party] was involved, which ended up being dismissed by the examining judge<\/strong> due to the groundlessness<\/strong> of the offence”.<\/p>\n\n

On 26.10.2017, the Data Protection Authority ordered the removal<\/strong> of URLs (Uniform Resource Locators), or web addresses<\/strong>, that still referred to the case.<\/p>\n\n

The ruling was unusual<\/strong> in that the territorial effectiveness of the order<\/strong> extended not only to national and European versions of the search engine but also to non-European versions, taking into account the plaintiff’s interests also outside the national territory<\/strong>.<\/p>\n\n

However, since the delisting order<\/strong> was also extended to non-European versions, the search engine operator challenged the order<\/strong> before the Court of Milan, which, through a decision issued on 21.9.2020<\/strong>, accepted the operator’s arguments.<\/p>\n\n

According to the judge in this case<\/strong>, in fact, in application of the now repealed rules of Legislative Decree 196\/2003, which transposed Directive 95\/46\/EEC on the protection of personal data,<\/a> the Italian Data Protection Authority did not have the authority<\/strong> to issue orders with extraterritorial effect and no proper balance had been struck between the plaintiff’s right to be forgotten and the right to freedom of information<\/strong>.<\/p>\n\n

The Italian Data Protection Authority<\/strong>, however, appealed to the Court of Cassation<\/strong> on the grounds that “the contested judgment … had misidentified the criterion based on which the Authority should have balanced the interests<\/strong>, assuming that the de-indexing with extraterritorial effect should have been in accordance with the parameters of the different legal frameworks in the non-EU countries in which the national provision with extraterritorial effect would allow enforcement of the Authority’s order”.<\/p>\n\n

Case law precedents on the right to be forgotten and the balance with the right to freedom of <\/strong>information<\/strong><\/h3>\n\n

Before analysing the question of the territorial effectiveness of the Authority’s order, the Court reviewed the most relevant rulings<\/a> in national and European case-law<\/strong> on the right to be forgotten and the right to freedom of information, focusing in particular on the de-indexing procedure<\/strong>. The following points can thus be summarised:<\/p>\n\n