When the “right to be forgotten” is an opportunity

By | Sunday January 22nd, 2017

Few days ago at the  Polytechnic of Milan, in the Aula Magna Carassa – Dadda, Campus Bovisa attended by nearly 450 people, it has been held an extremely interesting conference. During the event emerged – even if incidentally – a short debate on the “right to be forgotten” and its usefulness / viability  (here for a detailed resume of the day by P. Calvi).

In this post I’m going to emphasize this specific issue, underlining that the institute is governed sub Art. 17 GDPR (cfr REGULATION (EU) 2016/679), and has as typical assumption that citizens often complain about the infringement of their right to protection of personal data arising – more than from the publication of news (often lawful according to “freedom of press”) – from the indefinite time of presence on the internet and consequent dissemination of the information.

Leading cases as “Google Spain”, “Google France” or other local case law like Italian Supreme Court (Cassazione) Sez. III, 05-04-2012, n. 5525; n. 13161/2016; Court of Rome, sez. I, 03/12/2015 n° 23771; Court of Milan n. 5820/2013, have highlighted the matter at issue, and so they may have most likely contributed to the inclusion of the institute within the current privacy legislation.

By reading the judgments above and considering the facts referred to, it appears that the issue at a legal level is more complex than it might seem at a first glance. In Italy – simplifying – the repetition of known news would be useless to the community and damaging to the interested party, since his/her reputation would suffer further injury … hence the right to be forgotten, not to be longer remembered … with the elapsing of time the fact ceases to be a piece of news, and gets back to its original nature concerning the private sphere. There is no more news. Reliving the occurrence would be useless, since there would be no real interest of the community, the data processed would be therefore inadequate, no longer relevant, or excessive in relation to the purposes for which they are processed and the time spent (relevant exceptions are: 1 serious acts for which the public interest never fails; 2 revocation of the fact itself; 3 re-opening of the case; 4 returning unsolved cases or otherwise mysterious facts; 5 the role played by the person; 6  the victim).

We have to  remember that the right to be forgotten is not felt equally across European Countries (and also extra European Countries) precisely since each man is closely connected to its customs, its culture etc.; e,g, a minority of doctrine offers a reading of “the right to be forgotten” as against the United States Constitution, since it could be considered as an indirect form of censorship (look at “Why Journalists Shouldn’t Fear Europe’s ‘Right to be Forgotten’“).

Therefore, it appears opportune to consider the usefulness of the institution, also with reference to the real possibility of technical protection depending from information technology feasibility.

No doubt that structurally the right to be forgotten fits well, as a support, in the vision that Italian law has of the function of criminal punishment: not merely punitive but with a rehabilitative function, aimed at social reintegration of the offender. So, the possibility to be “forgotten” is a corollary allowing the convict the greater possibility – once the sentence is served (!) – to be re-inserted in the social context.

Considering only the GDPR – without specific reference to local Italian Law – in my (European, Italian!) opinion the right to be forgotten is a typical example of how the law may be useful to complement and protect the human demand linked to personal data, and it appears that through articles like this one the members of the European Parliament and the Council may transpose the intention expressed in the “considering” of GDPR in a more real and concrete way, by issuing a regulation on the subject to  homogenize privacy and modernize the legislation, making it more useful in everyday life.

Avv. Laura Marretta

 

 

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About laura.marretta

Avv. Laura Marretta Dopo aver conseguito la Maturità Classica presso l’Istituto Marcelline di Milano e la Laurea in Giurisprudenza presso l’Univeristà Cattolica del Sacro Cuore diventa Avvocato del Foro di Milano ed è Partner dello Studio Legale Internazionale Romolotti Marretta dal 2006. Svolge la propria attività professionale con particolare riferimento ai settori della Privacy e Data Security, Tutela del Segreto Industriale, Diritto della Moda, Energy, e Sistemi di Organizzazione Aziendale (normative UNI CEI ed ISO) nonché in ambito di Certificazioni e Marcatura CE. Svolge il ruolo di Responsabile Privacy presso enti associativi di rilevanza nazionale nonché per conto di società del settore industriale e dei servizi. E’ relatrice presso corsi e convegni sul territorio nazionale, con specifico riferimento ai settori della privacy e della video security. Collabora in pubblicazioni nazionali ed internazionali (www.romolottimarretta.com/pubblicazioni.html) tra le quali numerose edizioni annuali di Doing Business edito dalla World Bank Maturità Classica at Istituto Marcelline of Milan, Graduated in Law at Univeristà Cattolica del Sacro Cuore, Attorney at Law of the Milan Bar, is a Partner of Romolotti Marretta International Law Firm since 2006. Her professional activity is focused on Privacy and Data Security, Trade Secret Protection, Fashion Law, Energy Law, Enterprise Organization (UNI CEI and ISO standards), Certification and CE mark. She is Privacy Officer in associations at national level and companies of the industrial and services areas. Speaker at seminars and conferences with specific reference to privacy and videosecurity law, she is a contributor in national and international publications, included several editions of Doing Business edited by World Bank (www.romolottimarretta.com/lang2/publications.html)

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