Right to Oblivion and the Internet: a Recent Ruling of the Milan Court

A recent judgment of the Court of Milan (No. 5820/2013) on the so-called right to oblivion – or right to be forgotten – on the Internet, ordering a publisher to remove an old article from an on-line newspaper archive, provides a good starting point for an overview of the state of the art in national jurisprudence.

The concept of right to oblivion is not new in the Italian legal literature, but it has become highly topical in recent years, with the growing of the Internet and of digital news media. Because of the combined effect of on-line newspaper archives and automatic indexing by search engines, many individuals find their name permanently associated, in search results, with past events that do not reflect their current persona, or with old allegations of which they have been cleared in the meantime.

In this, as in any other legal matter, a balance has to be struck between several rights: chiefly, the freedom of information, the right to information, and, indeed, the right to oblivion. The latter has been construed by Italian courts as a derivation of the protection of personal identity; it is often defined as the right of any individual to see himself represented in a way that is not inconsistent with his current personal and social identity. “Right to oblivion” or “right to be forgotten” is, thus, an expression that does not make justice to the concept it means to carry, and can, indeed, be misleading – but we shall nevertheless use it here for ease of reference.
For years, issues such as those described above have been dealt with mainly by the Garante della privacy (the Italian Data Protection Authority), which in many cases has solved conflicts by ordering the “de-indexing” of the relevant article from the main Internet search engines. This can be accomplished by the source web page publisher independently and does not require the active participation of the search engine service provider.
However, in more recent years, the Garante had to face an increase in requests for direct intervention on the source web page, i.e. the very removal, or the update, of the concerned item from the newspaper electronic archive. Then, quite appropriately, Italy had its first landmark case, judgment no. 5525/2012 of the Court of Cassation, issued on April 2012.

The case argued before the Court was emblematic. A known person had requested unsuccessfully the Garante first, and then a civil tribunal, to order the publisher of a major newspaper to update an old article made available in its on-line archive, which was displayed at the top of all searches made in “Google” using the name of the plaintiff. The article gave an account of the plaintiff’s arrest on criminal grounds at the time, without, however, reporting – because at that time it had not yet occurred – his subsequent acquittal on all charges.
The first instance court denied the protection on the grounds that the news, when it was published the first time, was current, true and of public interest, hence its publication had been a legitimate exercise of the freedom of information; the current presence of the article on the Internet, on the other hand, served a valuable historical and documentary purpose, which would have been tampered by any alteration of the original document. The court came, in fact, to the conclusion that the plaintiff could not lay any claim to a right of oblivion, given its status as a public figure, hence the existence of “a persistent public interest in learning news related to his personal history”
But, on appeal, the Court of Cassation took a totally different view. It explicitly recognized the existence in the legal system of a right to oblivion, in the above sense of a right to protection of one’s (current) personal and moral identity in its social projection. It stressed the difference between an archive in the traditional sense and the Internet, where all the news is presented in a non-structured, “flat”, and decontextualized manner. It noted that in principle, if the purpose of historical documentation could justify, from the point of view of privacy law, public access to an original article, and identification of the individuals named (consistency of personal data processing with respect to the legitimate purpose of the processing is a cornerstone of privacy law) it was, however, more in line with this purpose, and at the same time respectful of the right to oblivion, that the news be updated and contextualized, or even deleted from the archive, if it ceased responding to the truth.

The Court concluded that in the case at issue there was an obligation upon the publisher to devise a suitable method to provide (in the body or at the side of the article) an up-date to the original news.

Almost in passing, the Court also found that the search engine service provider had no role or responsibility in the matter, thus rejecting one of the arguments of the defendant, who had claimed his lack of locus standi in favor of Google. Watchful readers will note that this reasoning anticipates the conclusions of the Advocate General of the European Court of Justice in Case C-131/12, issued earlier this year (and more than one year after the Court of Cassation ruling).*

The repercussions of this historic judgment were soon evident. Citing it openly, between December 2012 and January 2013 the Garante granted two applications seeking an order against the publisher to annotate an on-line article with a follow-up to the news reported.

But also ordinary courts took notice. It certainly is the case with the Milan decision that has offered the starting point for this post. The similarities between the Milan case and the one decided by the Court of Cassation, on the other hand, are apparent.

The plaintiff in the Milan case complained about the presence in the on-line archive of a major newspaper of a 1985 article in which he was described, inaccurately, as a loan shark and tax evader; the article had been indexed by the search engines and was prominent in the search results. The plaintiff invoked defamation and infringement of the right to oblivion. The Milan judge ruled out defamation (based on a statute of limitation), but she acknowledged the violation of the right to oblivion.

In particular, she noted that the news reported were in part untrue and that there was no particular interest to justify a wide public access to the article, in light of the time lapsed and the lack of a significant public role of the plaintiff. As for the purpose of historical documentation, it could, in her opinion, be satisfied with the preservation of a paper copy.

Recalling that the Court of Cassation had endorsed, as an extreme measure, the removal of an article from the Internet, the judge found that in the case submitted to her that was the most appropriate remedy, given the lack of any appreciable interest to counterweight the protection of personal identity. She therefore ordered the publisher to remove the article from the newspaper on-line archive, allowing it to keep only a hard copy for documentary purposes, and sentenced it to pay compensation for moral damage.

Actually, the plaintiff had jointly sued the publisher and Google Italy; but the latter was found to lack standing, on the grounds that the actual processing of data was carried out by Google Inc.
There is no doubt that for national publishers this new judicial trend will pose enormous management problems. As it would be impossible to arrange a retrospective review of millions of articles already made available on the Internet, they will have to decide how to handle requests to update or delete them in the name of right to oblivion that, without a doubt, will soon begin to arrive.

*Update: on May 13, 2014 the Court of Justice published its ruling in Case C-131/2012, overturning the conclusions of the Advocate General. The Court found that, in order to enforce the rights provided for by Community Law on personal data protection, the operator of a search engine is obliged “to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person… even, as the case may be, when its publication in itself on those pages is lawful”. Furthermore, the ECJ seems to acknowledge the existence in Community law of a “right to be forgotten” in stating that, in the event that the list of results displayed by the search engine following a search made on the basis of a person’s name contains information which, although true, are inadequate, irrelevant or no longer relevant, or excessive in relation to the purpose of the processing, or not kept up to date, or kept for longer than is necessary, unless they are required to be kept for historical, statistical or scientific purposes “the information and links concerned in the list of results must be erased”.