The right to be forgotten, protected as the right to delete their personal data, has always been governed by the article 17 of the European regulation on the protection of personal data (2016/679).
This right derives from a principle enshrined in jurisprudence according to which the person can obtain the de-indexing of a link relating to a news that concerns him when this news no longer has public interest..
The right to erasure is not an absolute right, but an external limit to the right of the press and freedom of the press and must be balanced with competing law.
Consequently, in the event of a request for cancellation of personal data by the interested party, the protective measure must not necessarily be the total cancellation of online information, but it can be a minor measure such as de-indexing by the search engine.
De-indexing consists in the impossibility of retrieving information from the web relating to the legal matter of a subject by typing his name and surname .
Therefore, in the event that there is a legitimate reason to continue to keep the data online e, generally the public interest in the news is the overriding reason for rejecting the request, the right to be forgotten cannot be exercised by the person concerned. Obviously, the news must be current and truthful.
And so if, for example, the interested party requests the cancellation of the news of an arrest and the related proceedings are still in progress, in this case there will be public interest. In other cases instead, as also stated by various jurisprudential rulings, in which the private subjective right prevails over the public interest, you can proceed with the removal or updating and / or correction of the news.
Up to now, the right to be forgotten has received protection through a request made by the person concerned to search engines or to the owners of editorial publications.
In the event that the request is rejected, the interested party can lodge a complaint with the Guarantor for the protection of personal data who always decides on the basis of balancing the opposing interests.
In the course of my professional experience, as DPO of a company that carries out newspaper publishing activities, it has often happened to see both requests and complaints relating to the deletion of data of subjects in which the process was still pending or in which it had sometimes resulted in acquittal, at other times because it was filed and at other times with the sentence.
In order to establish whether or not the request is accepted, the key principle has always been to balance the public interest with the right of the interested party.
In many cases, where it was possible to meet the request, we proceeded to de-index.
In many other cases, however, where public interest was still alive, especially for the visibility of the interested party, the news was kept.
What today instead constitutes a turning point and a novelty is the strengthening of the protection of the right to be forgotten introduced by the Cartabia reform.
And in fact the new legislative provision establishes the right only of those who have been acquitted, acquitted or subject to an archiving provision to request the de-indexing of the news relating to the procedural affair of which he remained unharmed, thus avoiding that his data appear on search engines.
In the event that the request is not satisfied within 7 days the interested party may request the Guarantor for the protection of personal data, based on the archiving decrees, judgments of non-prosecution and / or acquittal sentences that immediately issues "a de-indexation provision from the internet network of contents relating to the criminal proceedings containing the personal data of the suspects or accused ". .”
Consequently, this legislative provision allows anyone who has left the judicial circuit with a sentence or favorable provision to exit definitively not only from the process, but also from the media scene.
In this way, the damage that derives from the presence of data on the web is also eliminated and which undoubtedly entails rather significant and detrimental consequences for working life, of relationship, image and dignity of the person.
Scientific contribution of’Lawyer. Elisa Lazzaro