Italy: Scope of the ‘Right to be forgotten’ should not be expanded

Italy: Scope of the ‘Right to be forgotten’ should not be expanded - Digital

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In February 2021, ARTICLE 19 and Media Defence submitted a third-party intervention before the European Court of Human Rights in a case concerning the ‘right to be forgotten’. The submission focuses on how States must balance the right to freedom of expression and information and press freedom with the right to privacy. It warns against the expansion of the scope of the ‘right to be forgotten’ as this would have serious impacts on freedom of expression and access to information.

The case Biancardi v. Italy concerns the application of the ‘right to be forgotten’ against an online newspaper. The newspaper had been ordered to remove a story from 2008 about a stabbing incident between two brothers. An Italian court ordered the editor to pay 10,000 euros in reputational damages, a decision which was upheld by the Italian Supreme Court. The editor has brought the case before the European Court of Human Rights (the Court) on the grounds that his right to freedom of expression has been violated.

In the submission, ARTICLE 19, together with other partners, expressed concerns about the ‘right to be forgotten’ being applied far beyond the intended scope laid out by the Court of Justice of the European Union in its 2014 judgement in Google vs. Spain. The initial scope imposed the requirement to de-list search results associated with an individual’s name but it did not extend to the source of the content at issue such as newspaper archives or other online content. National courts have expanded this ‘right to be forgotten’ to newspapers and articles. This practice poses serious threats to freedom of expression as articles are no longer accessible to the public through any search engine.

In the submission, ARTICLE 19 argues that information that is of public interest should always remain available, this includes information that has immediate public interest but also past information that still has a public interest value. Further, media archives should be protected and that the public should have access to them. The delisting of information from search engines makes finding the information difficult, removing it from the primary publisher equates to censorship as it is officially removed from public view.

The submission made a number of recommendations to the Court to consider in ‘right to be forgotten’ cases:

  • The nature and the origin of the information should be considered. Links to articles published by individuals or entities engaged in journalistic activity or performing a public watchdog function should not be de-listed. This same logic should be applied to books and academic articles. This presumption is particularly important when the order is sought against the primary source of the information.
  • Those claiming the ‘right to be forgotten’ should be required to prove that they have suffered substantial damage or harm. This harm should be sufficiently specific and attain a certain level of gravity. The complainants must be required to show that their privacy has been significantly affected by the available online information linked through the search of their names.
  • The Court should consider how recent the information is and whether it retains a public interest value. Information can be of immediate public interest value but also gain it over time. The right to report on matters of public interest should not expire with the mere passage of time.
  • An individual’s right to control access to this information should not outweigh the public’s right to receive and impart information.

Read full submission