The Milan Court on the right to be forgotten from Google searches

The Milan Court, with ruling no. 10374 of 28 September 2016, overturned an earlier decision with which the Italian Data Protection Authority (DPA) denied protection to the appellant, who had a public position and enforced her right to be forgotten. The right to be forgotten has been discussed here and here on this blog.

Here are the facts. The appellant – the alleged victim of a defamatory political article from 2010 which was removed from its original source after different proceedings led to a transaction – had asked Google several times to remove the URL of a blog including a copy of the abovementioned article from the results generated by the search of her name and surname. Having been denied such requests, she turned to the DPA seeking it to order Google to remove the URL at issue; however, the DPA did not grant her request because of the users’ alleged public interest in having access to the information enclosed in the article (interest arising from the public position of the appellant). The DPA considered this interest prevalent with respect to the appellant’s personal data protection right. Hence, she appealed the decision before the Milan Court against both Google and the DPA, on the grounds that, on one hand, the public interest assessed by the DPA did not exist due to the significant time that had elapsed since the article’s publication, the content of the article was not ascertainable and the article was removed by its own publisher, and, on the other, her right to be forgotten had to be considered prevalent when weighed against the general public’s right to be informed and the economic interest of the operator of the search engine.

The Court first pointed out that the right to be forgotten – as already stated by the ECJ with the ruling in the “Costeja” case (C-131/12) recalled by the appellant – has to be considered prevalent when being weighed against other fundamental rights, such as the freedom of enterprise of the operator of the search engine – whose diffusive information capacity, to the Court, is more invasive than that of the source sites – and the users’ right to access information; this unless the processed personal data and/or the subjects to whom they refer have a public nature. If so, in fact, the users’ interest in having access to the information at issue shall prevail. The necessary prevalence of the right to be forgotten arises from the fact that such right is a (functional) aspect of the right to personal identity, consisting, in particular, of the right to obtain the dissociation of a personal name from a specific search result. Several provisions protect the right to personal identity: i.e. Article 2 of the Italian Constitution as a personal inviolable right; the European Convention on Human Rights (ECHR) with regard to the inherent dignity of all human beings; Directive 95/46/EC in the matter of personal data protection as well as the Italian Personal Data Protection Code (the Code) insofar as they provide that the personal data must be processed in compliance with fundamental rights and individual freedoms, including the right to personal identity and dignity.

The Court therefore assessed the alleged existence of public interest in accessing the information within the article the contested URL links to, recalling the right of the data subject to obtain the rectification or removal of their own data and their right to have their data processed in compliance with the criteria of proportionality, necessity, relevance and not excess in relation to the purposes of data processing under Articles 7 and 11 of the Code. Thus, the Court stated that the appellant’s personal data processed within the article, although still actual in the abstract, were irrelevant, incomplete and out of date, so that the possible public interest arising from the public nature of the appellant’s position – as opposite to the DPA’s findings – should be considered groundless. This was due to the following decisive circumstances: a) the opinions exposed within the article were totally isolated, given that they had not been ascertained by subsequent checks on the regularity of the public competition to which the appellant had participated and the regularity of which was contested; b) the appellant demonstrated to have the (uncontested) professional requirements necessary to play her position; and c) the publisher of the article had ordered its removal from the online archive.

In light of all the above, the Court annulled the DPA’s appealed decision and, consequently, ordered the search engine to de-index the contested URL from the results of a search of the appellant’s name and surname. The Court also ordered Google to pay the legal fees jointly and severally with the DPA.