The Italian Supreme Court on the right to be forgotten

Last February 2, the Supreme Court expressed itself on the balancing of the competing interests between the right of the individual to be constitutionally protected, relating to the right “to be forgotten” and those of the community to be informed.

The case originates from an action instituted by a private party against Yahoo! Inc and Yahoo! Italia s.r.l., now in liquidation, in order to obtain the removal of several URLs from the results of internet searches carried out with the Yahoo! search engine, which linked the individual’s name to a judicial case that he considered no longer current. At the request of the interested party, the Italian Data Protection Authority ordered the companies to de-index certain contents as well as to remove the URLs and the pages present in the cache linked to these URLs.

The two companies then appealed to the Court of Milan, asking for the cancellation of the Authority’s measures. The Court of Milan, with a decision dated January 15, 2016, rejected the appeal and considered the Authority’s measures correct, stating that the fundamental rights of the person concerned had to “prevail not only over the economic interest of the search engine operator, but also over the interest of the public in locating the information”.

The companies challenged the decision before the Supreme Court, contesting, amongst other things, the jurisdiction of the Italian Data Protection Authority in an action against a foreign entity operating outside the national territory. Furthermore, the companies considered the request for the withdrawal of the data contained in the cache to be excessive.

The Supreme Court confirmed the jurisdiction of the Italian Authority to act against Yahoo! Italia s.r.l. in liquidation and Yahoo! Inc., due to the fact that the activities of the search operator and those of its affiliate, with establishment in Italy, are “inseparably connected”.

With regards to the scope of the removal orders, the Supreme Court firstly confirmed the right to de-index the results that the search engine uses to link the name of a private party to a legal case of public interest when the case, in question, is considered to be no longer current.

According to the Court, the de-indexing of information is an instrument aimed at preventing specific sensitive data, in this case the name of the interested subject, from being linked by the search engine to facts, which the Internet continues to preserve in its memory. However, this results in the incomplete removal of the information from the network, which will still remain traceable on the source site or through more complex research methodologies.

It would be, therefore, a remedy that already intrinsically operates a balance between the interest of the individual to be forgotten and the interest of the collectivity to be informed.

The cancellation of the cache copies, on the other hand, prevents the search engine from directing the user towards the site, where the news in question is published, whatever the keywords used, even if different from the ones corresponding to the name of the interested party.

There is no doubt that, with respect to de-indexing, in the cancellation of cache copies there is clear intention to make the individual’s right to confidentiality prevail over the community’s right to access information.

The Supreme Court, therefore, in accepting the appeal of Yahoo! Inc. and its affiliate, has overturned the decision of the Court of Milan stating that “the deletion of cache copies relating to information accessible through the search engine, relevant to the ability, by the said search engine, to provide an answer to the query posed by the user through one or more keywords, does not follow the ascertainment of the subsistence of the conditions for the de-indexing of the data starting with the name of the person, but requires a balance between the right to be forgotten of the interested party with the right having as its object the diffusion and acquisition of the information, relative to the fact in its complex, through key words, also different from the name of the person”.