The Italian perspective of the right to oblivion

Abstract

This paper gives a brief overview of the state of the art relating to the right to oblivion in Italy. Three major issues on the way this right is perceived, recognized and protected are presented. First, the strict link between the right to oblivion and the right to information is discussed. Then, the role of the internet revolution in enlarging the protection to different situations related to the right to oblivion is analyzed. Finally, a reflection on the distinction between the right to oblivion and the right to data protection and specifically from the right to erasure, anonymization or blocking of data that have been processed unlawfully is drafted.

Keywords:

• right to be forgotten
• right to privacy
• right to information
• access to information
• data collection and preservation

Notes

1 Recently, two legislative proposals have been presented in order to create a specific legal framework for the right to oblivion relating to facts and information disseminated on the Web concerning individuals involved in criminal proceedings. These proposals (legislative proposal S.1039 of 12 September 2013, XVII legislature, and legislative proposal C.2455 of 20 May 2009, XVI legislature) were not approved.

2 The very first decisions on this issue are four orders by Rome Tribunal of November 1996, published in Giustizia Civile, 1997, I, 1979 ff.

3 Court of Cassation, 3rd Civil Section, 9 April 1998, no. 3679.

4 Rome Tribunal, order of 8 November 1996 (see Note 2).

5 The first Italian statute on personal data protection was Law no. 675 of 31 December 1996, then replaced by Legislative decree no. 196 of 30 June 2003 (Personal Data Protection Code).

6 Rome Tribunal, orders of 8 November 1996 and 20 November 1996 (see note 2).

7 This principle was recently confirmed by the Court of Cassation, 3rd Criminal Section, 26 June 2013, no. 16111, according to which “the subject’s right to demand that his or her own past personal events are not publicly evoked (in this case, the right to oblivion was invoked in relation to old militancy in terrorist gangs) is limited by the freedom of the press only when there is an effective and current interest in their diffusion, in the sense that what has recently happened (in this case, the discovery of an arsenal of weapons in the area of residence of the former terrorist) has a direct connection with the events themselves and revives their topicality, failing which the public and improper connection between the two pieces of information becomes unlawful interference with the right to privacy.”

8 Court of Cassation, 1st Civil Section, 18 October 1984, no. 5259.

9 See, for example, Garante per la protezione dei dati personali, 18 February 2010 doc. web 1706475; Garante per la protezione dei dati personali, 22 May 2009 doc. web 1635938, available on http://www.garanteprivacy.it.

10 It is to be noted that according to this code of practice (Article 1), ‘the fact of collecting, recording, keeping and disseminating information on facts and occurrences concerning persons, collective entities, official bodies, custom, scientific research and intellectual movements – when carried out within the scope of journalistic activity and for the relevant purposes – is essentially different in nature from the storage and processing of personal data by databases or other entities.'

11 Garante per la protezione dei dati personali, 11 December 2008, doc. web 1582866, available on http://www.garanteprivacy.it.

12 Court of Cassation, 3rd Civil Section, 5 April 2012, no. 5525.

13 Garante per la protezione dei dati personali, 20 December 2012, doc. web 2284632; Garante per la protezione dei dati personali, 24 January 2013, doc. web 2286820, available on http://garanteprivacy.it.

14 EU Court of Justice, judgment of 13 May 2014, Google Spain and Google (C-131/12).

15 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.

16 See Opinion of Advocate General Jääskinen, delivered on 25 June 2013, par. 84 ff.

17 Garante per la protezione dei dati personali, 10 July 2014, Decision Setting forth Measures Google Inc. Is Required to Take to Bring the Processing of Personal Data under Google's New Privacy Policy into Line with the Italian Data Protection Code, doc. web no. 3295641, available at www.garanteprivacy.it.

18 See the Press release of 6 June 2014, available at: http://ec.europa.eu/justice/data-protection/article-29/press-material/press-release/art29_press_material/20140606_wp29_press_release_google_judgment_en.pdf.

19 Garante per la protezione dei dati personali, 18 February 2010, doc. web 1712776, available on http://garanteprivacy.it.

20 See the European Parliament legislative resolution of 12 March 2014, doc. P7_TA(2014)0212, where the title of Article 17 proposed by the EU Commission (“Right to be forgotten and to erasure”) has been amended as “Right to erasure.”

21 Garante per la protezione dei dati personali, 10 November 2004, doc. web 1116068, available on http://garanteprivacy.it.

22 Garante per la protezione dei dati personali, 21 November 2013, doc. web 2914227, available at http://garanteprivacy.it.