27 Aug The passing of time is not the only criteria to be considered in the exercise of the right to be forgotten
Background information
On 15 June 2017, the Italian Data Protection Authority (hereinafter, “Garante”) partially upheld the action brought by a high ranking public official who asked to delete some URLs from the list of results displayed when googling his name.
These results concerned a criminal case which occurred 16 years ago, which ended in a sentence against him. Despite his rehabilitation, the claimant complained about the persistence of some articles about his past criminal case on the web. The URLs at stake referred specifically to an article written in 2001 (immediately after the fact) and other articles written between 2012 and 2016.
Legal framework and main issues
The decision at stake provided further clarifications on the limits of the right to be forgotten, as established by the Court of Justice of the European Union (hereinafter, “CJEU”) in the “Google Spain” judgement. Specifically, according to the Garante, the passing of time is not the only element to take into consideration in the evaluation of a legitimate exercise of the right to be forgotten.
Google defence argued that the URLs related to the articles appeared as results of the search only when the name of the claimant was searched with words such as “sentenced” and not on its own. Therefore, the results of the research were not technically made only “on the basis of his name”, which was the trigger condition requested by the “Google Spain” judgement for de-listing.
The Garante resolved the issue by taking into consideration the several interests involved in this case applying Article 29 Working Party’s Guidelines on the implementation of the Google Spain judgment.
According to these criteria, the flow of time is the most significant element to be considered but it is not the only one. There are other criteria which may be applied in the case at stake, such as the accuracy of the information and the public interest (i.e., when the data subject covers a public role).
Based on these, the Garante required Google to remove the news written in 2001, in virtue of the time passed and the inaccuracy of the information contained therein.
Regarding the 2012 and 2016 articles, the Garante took the opposite decision: the news were recent and, most importantly, accurate in reporting the sentence and the rehabilitation. Accordingly, the Garante established that the public interest prevailed.
Practical implications
When dealing with the right to be erasure (“right to be forgotten”), the flow of time alone cannot be a sufficient criterion to justify a news removal. The Garante will always consider other factors such as the right to information when a public person is involved as well as the accuracy of the reported information.
The decision at stake followed the guidance provided by the CJEU and the Article 29 Working Party, further specifying what was established in the “Google Spain” judgement.
