Database Reference
In-Depth Information
In the same way, outdated information, which does not represent current reality,
may well give an impression of the individual which is untruthful or out of context.
By “right to oblivion”, according to the historical definition formulated by
Italian jurisprudence, we refer to a person's right to prevent the re-publication of
information contained in newspaper articles, even though lawfully published in
the past. This right comes to a new life on the Internet. On the net, a story or
photograph remains forever. However, the right to oblivion both on and off the
net, requires balancing with other requirements such as those of the freedom press.
The recognition of the “right to oblivion” (or “right to be forgotten”), i.e. the
deletion of information which no longer corresponds to the individual's identity or
which is inaccurate, could constitute an adequate form of protection. The
recognition of this right, in fact, is not subject to prior evaluation of the
information as unlawful or defamatory.
The right to oblivion would not have a different connotation on the web. This
right could not be transformed into a right to delete information unconditionally.
For example, information published on the web would remain lawfully and
circulate in accordance with law.
However, it should be clear that the right to oblivion would apply under certain
conditions specified by regulations and by case law: there would be no general “right
to delete”, according to the wishes of the data subject. From this point of view, the
right to oblivion should be generally balanced with other interests or rights. It is well-
known that no right exists to construct a subjective identity of oneself, either on or off
the Internet, but the identity is, as stated in this chapter, always the result of a social
mediation between the one's subjective and a set of objective factors
21
.
21
An important decision was rendered by the Italian data protection Authority in connection
with a complaint lodged in 2004. The case concerned the retrieval on the Internet of a
decision issued by the Italian Antitrust Authority (which is not a judicial authority) against
a company, based on misleading advertising; the said decision had been issued in 1996,
and was subsequently posted on the Authority's web site. The plaintiff alleged that the fact
of the decision being still available on the Internet whenever information concerning his
current activities was being retrieved, was in breach of his right to oblivion.
In this decision, the Authority stated that the publication by the Antitrust Authority was
lawful. However, in order to ensure that the processing on the Internet was not in breach
of the legislation on data protection, two measures were to be taken:
a) the creation of a restricted-access section in the Antitrust Authority's website to post
decisions such as the one in question (dating back to 1996), which must not be
retrievable by means of the standard external search engines;
b) defining a period by the Antitrust Authority during which posting and free retrieval of
a decision on the Authority's website can be regarded as proportionate in view of
achieving the purposes sought by the decision in question.
On the issues related to search engines and the right to oblivion, the Italian data
protection Authority adopted another decision in November 2005 dealing, in particular,
with the retention and availability on the Internet of newspaper articles dating several
years back. The articles in question were no longer available on the website of the
specific newspaper that had published them, however they could still be retrieved via
Google, which showed the parallel processing carried out by Google by means of cache
copies and the respective abstracts. These decisions are available on
http//www.garanteprivacy, docc. web 1200127 e 1116068.
Search WWH ::
Custom Search