31 Dec right to be forgotten and Cartabia reform

The right to be forgotten, recognized for the first time by European jurisprudence in the Google Spain SL case, Google Inc. vs. AEPD, Mario Costeja Gonzále (case C-131/12), is the right to obtain the elimination of personal data by the cd. intermediary (es. search engine), if the interested party deems them harmful to his reputation. The activity of mere dissemination of news carried out by the intermediary, cd. indexing, allows the community to obtain a constant update without having to check the content of the same, therefore, art. 17 Regulation (UE) 2016/679 (GDPR) list the reasons, specified by jurisprudence, for which the interested party has the right to obtain from the intermediary the so-called. deindexing, i.e. the removal of the information object of the request (es. the absence of a specific and current public interest in the dissemination of the news or the elapse of a significant period of time from the facts which makes the information irrelevant). The national protection of the right in question, currently, it can be achieved through various and automatic civil remedies, of an injunction and compensatory nature. Among the first, the de-indexing process is included, which allows a name to be dissociated from certain search results or from certain keywords connected to it, to avoid being easily associated with news that harms one's image, finding its rationale in the right to privacy pursuant to art. 2 Cost. If a person deems they have the right to de-listing, can send a request directly to the intermediary e, in case of non-compliance with the request, subsequently, the same may lodge a complaint with the Guarantor Authority for the Protection of Personal Data (c.d. Privacy Guarantor), ex art. 140 bis of the Privacy Code and art 77 GDPR; Lastly, may appeal to the Judicial Authority against the decision of the supervisory authority, ex art. 78 GDPR. However, the right to be forgotten is not absolute: requires a balancing by the judge of merit to assess the effective pre-eminence, in the concrete case, the interest in privacy and personal identity of the individual pursuant to art. 2 Cost., with respect to the freedom of information pursuant to art. 21 Cost. Indeed, art. 2 of the Constitution recognizes and guarantees the inviolable rights of the individual who, in relation to the protection of oblivion, refer to the right to moral integrity, reputation and image rights, lies the art. 21 Cost. sanctions the free expression of thought through freedom of information, press and news. Therefore, a concrete judicial assessment is needed on a case-by-case basis, being inadmissible to predetermine an absolute hierarchy a priori regarding the pre-eminence of one of the two constitutional rights, regarding de-indexing. Differently from the current civil protection, the criteria through which the penal reform in question delegates to the Government the modification of the institute on the communication of the sentence, referred to in Legislative Decree. 271/1989, it would seem to outline a perimeter within which the right to be forgotten must be protected in absolute terms, with respect to the disclosure of information of a judicial nature. Indeed, the suspect/accused would have the right to the cancellation of the information disseminated by the intermediary if the criminal proceedings were concluded in his favor and in cases in which a de-indexing provision was issued, not having to submit to judicial balancing. This measure, indeed, constitutes the title by which to obtain the effective de-indexing if the legal case has been concluded with an archiving decree, sentence of no place to prosecute or acquittal. Therefore, in the absence of the de-indexing provision, the interested party will have to resort to the common procedure, requesting the intermediary to de-index the contents relating to criminal proceedings or convictions, with reference to the conditions required by art. 17 GDPR. Right to report and right to be forgotten in criminal proceedings. De-indexing limits, therefore, the prejudicial effects of the constant reference to news that, albeit legitimately widespread in origin, it is no longer justified by reasons of public utility and negatively affects the personality of the person concerned. The journalistic nature of the criminal trial determines an incessant and continuous dissemination of news reports concerning the subjects involved, raising some doubts about the digitized journalistic archives and usable directly online. Again with reference to the art. 21 Cost., the criminal procedural discipline requires the balance between the right to be forgotten and the right to report being, the latter, a subjective public right aimed at the protection of public information and a corollary of the freedom of expression of thought, peacefully recognized by doctrine and jurisprudence as the right to disclose facts of public interest. However, in order to enter the right-of-news channel, the news must observe the conditions of the truth, of relevance and continence, as elaborated by the Court of legitimacy. Indeed, regarding the publication of news, the conditions for the effective protection of the same concern, essentially, the objective truth, the public interest in knowing the fact and the civil form of the exposure, having to be respectful of the dignity of the person (cd. reporter's decalogue). The Supreme Court affirmed that the right to be forgotten can be recessive, with respect to the right to report, only in the presence of some elements of the information content, as a debate of public interest that justifies its effective and current diffusion or the great notoriety of the subject represented (Cass. Civ.,I sez, Ord. 20 March 2018, n. 6919). Also, the Court observes that “as the topicality of the news and the social utility of the first publication cease to exist, it is accompanied by the winning observation that the passage of time changes the personality of the individual and the re-publication of a news already disclosed in the distant past can validate an image of the person different from the one currently existing, with damage to personal identity and reputation that accompanies the new image. The right to be forgotten (right to be forgotten) for the mentioned contents consists, therefore, the right not to be exposed, without time limits, to a no longer current representation of one's own person, with prejudice to reputation and confidentiality […] As noted by careful doctrine, so it happens that the fact, fully acquired by the community, after losing its public connotation, in the intervening time, with the discoloration of interest in its knowledge it becomes private e, where reproposed, opens the space for the recognition of the right to be forgotten […] (Cass. Civ., Sez. I, ord. 18 February-May 19 2020, n. 9147). That said, regarding news of criminal proceedings, the United Civil Sections illustrate that “the correct premise from which one must start is that when a journalist publishes again, after a long period of time, news already published – which, at the time, covered a public interest - he is not exercising his right to report, as well as the right to historical re-enactment (historiographical) of those facts. […] it is a right concerning the story, through the press or other means of dissemination, of something that pertains to that time and is, therefore, associated with a certain context. This does not exclude, naturally, that in relation to an event of the past, new elements may intervene such that the news becomes topical again, so that spreading it in the present moment still represents a manifestation of the right to report (in this sense, the aforementioned sentence no. 3679 of the 1998); in the absence of these elements, But, go back to spreading news from the past, although of sure importance at the time, constitutes the explication of a historiographical activity that cannot enjoy the same constitutional guarantee that is provided for the right to report. […] historiographical activity, intended precisely as a re-enactment of facts and events that have marked the life of a community, it is part of the history of a people, it represents its soul and is, therefore, a valuable asset. But precisely because it is "history", can not be considered "chronicle" […]”. (Cass. Civ., SS.UU., sent. n.19681/2019) Therefore, according to the Court, the trial judge is required to verify whether or not there is a qualified interest in the dissemination of the news with precise references to the person who was the protagonist of that story in the past, personal identification could become irrelevant for the recipients of the information itself: the right to information also exists with respect to very distant facts but does not automatically equate to the right to new and repeated disclosure of personal data. Indexing, therefore, it is an activity distinct from the creation of information content or from the publication which is in turn distinct from the republication of the same or from the historical re-enactment of that fact: each of these activities configures an autonomous data processing, therefore, news updates can only be requested from the source site, while only de-indexing can be requested from the search engine. It is essentially an integration to the art. 154-ter of the implementing provisions of the criminal procedure code; in providing that the archiving decrees, the sentences of no place to proceed and the sentences of acquittal are transmitted to the Guarantor for the protection of personal data and that these "constitute a reason for the issuance without delay of a de-indexing provision from the internet of the contents relating to the criminal proceeding containing the personal data of suspects or accused persons», the subject against whom a filing decree has been pronounced is protected, sentence of no place to prosecute or acquittal, limiting the activity of the intermediary but at the same time leaving unaffected the right of publishers and managers of newspapers to publish, keep and republish after some time the news relating to a criminal proceeding. While, the regulation of declarations by public authorities, prohibits them from publicly indicating the suspect or accused person as guilty, up to the irrevocable conviction or penal decree, under penalty of rectification of the declaration made, as well as the application of any criminal sanctions, compensation and disciplinary measures. In other words, any person who emerges unscathed from a legal case may request, based on the judge's ruling, that your data no longer appears on search engines. We've already said that so far, the right to be forgotten could only be obtained through a rather cumbersome procedure, which began with a de-indexing request to Google – often rejected – and then continued with the appeal to the Guarantor or to the judicial authority. Furthermore, the request of the interested party was decided on a case-by-case basis and on the basis of a continuous balance between the right to be forgotten and the right to report. With the reform, instead, it is as if such a balance had been – limited to the hypothesis considered – pre-established in general for all cases in which a person emerges totally unscathed from a criminal proceeding against him. The recognition of the right to de-indexing is therefore envisaged as an express obligation, depriving the competent bodies of any margin of discretion. This is because the continuation of the judicial proceedings is certainly a heavy burden for a person against whom an acquittal sentence is issued, but it is also for the one who, found guilty and served sentence, tries to reintegrate into society with the hope of being able to enjoy the effects of the re-educational function of the sentence. In the case of acquittal, But, the question assumes a somewhat different meaning, but above all an incalculable extent in terms of social danger. This is for a very simple reason: anyone can be the subject of an investigation or criminal prosecution. In fact, a particularly serious accusation is sufficient, such as the commission of a crime that can be prosecuted ex officio which affects values ​​dear to public opinion, because the subject finds himself involved in a daily accusing media spiral. Clearly, the competent authorities have the right to investigate and establish the facts, but at the same time it is also necessary to reiterate the constitutional principles, above all the presumption of innocence and human dignity. Then when the not guilty is ascertained, it becomes essential to prepare all the conditions so that the subject can continue his life, beyond any personal assessment of the matter. The introduction of the right to be forgotten through the recognition of an obligation to de-index personal information after having emerged unscathed from a criminal proceeding is therefore a positive novelty not only for the protection of privacy, but for the justice system in general because it allows a person to regain possession of their identity outside the courtrooms, media and otherwise.