The Right to Be Forgotten in the Case-Law of the Italian Court of Cassation

In Italy the Supreme Court of Cassation is at the top of the ordinary jurisdiction; it has the function of ensuring certainty and uniformity in the interpretation of the law. Some of its recent decisions concern the so-called “right to be forgotten” (or “right to erasure”), currently enshrined in Article 17 of the General Data Protection Regulation (GDPR), in force since 25 May 2018 in the European Union. The right to erasure is strictly linked to the “right of rectification” (Article 16 of GDPR): both are connected to the individual right to the correct representation of one’s "digital identity", as well as to the protection of one’s “web reputation”. These rights were included in the GDPR as a consequence of the famous Google Spain judgement (13 May 2014) of the Court of Justice of the European Union, which qualified search engines as data controllers under the Directive 95/46/EC and obliged them to evaluate the requests of de-listing made by data subjects. Search engines have been thus invested of the delicate task of balancing the interest of the general public in having access to information and the individual right to the respect for private and family life and to the protection of personal data. Actually, neither the Google Spain judgement nor the GDPR guarantee that the data subject will be actually “forgotten” as a consequence of the de-listing or erasure of personal information, since it is unlikely – or even impossibile – that information will totally and definitely disappear from the Internet, once uploaded. Therefore, the actually protected right is only that some personal information obtain less visibility after de-listing and that incorrect, distorted or irrelevant information is somehow made more adherent to the data subject’s expectations. The Italian Supreme Court of Cassation has especially stressed the connection between the right to be forgotten and the protection of the personal reputation, since everyone has the right to be represented in social life with his or her own “real” identity. Many of its judgments concerned people who claimed that media should not re-publish more news related to past events (often judiciary cases) in which they were involved: the onset of the “right to be forgotten” was considered in connection to the passage of time, because of which the public interest and the social usefulness of certain information had diminished. The protected right, therefore, was the individual need to be protected from the disclosure of (potentially) harmful information which were no longer topical and were therefore unjustifiably treated. In case of past news articles stored in online archives, sometimes the Court ordered they should be contextualized and updated, sometimes cancelled, sometimes de-listed, sometimes left as they were: the different results of the Court’s reasonings depended from the passage of time, the relevance and public interest of the information, the degree of notoriety of the subject represented, the ease of access to the disputed information through search engines.