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01.11.2016

IT: Highest Court applies right to be forgotten directly to online-article

by Tobias Raab
The Highest Court of Italy has decided that media have to delete older articles from their online archives in order to secure the right to privacy. The decision was based on a case about media coverage about a lawsuit against an owner of a restaurant on the website PrimaDaNoi.

The plaintiff had asked the website to delete the article after it had been published on the site for more than two years, because he found it to not be relevant anymore and felt violated in his right to be forgotten. After the provider of the website had refused to delete the article that had already been published in 2006, the plaintiff sought a judicial decision and asked for an injunction. PrimaDaNoi finally deleted the article six months after the original deletion request and before the end of the lawsuit. The plaintiff therefore asserted claims for damages regarding those six months and had been granted that claim through all three instances. The appeal court decided that after more than two years the public interest in the reports would no longer overweigh the plaintiff’s right to privacy, which was why it judged that the website’s provider had to pay damages. The Highest Court however also based its decision on the plaintiff’s right to be forgotten. Even though this right had so far almost only been used to prohibit search engines to show articles and websites in their search results, the court used it directly to make a judgment against the website as the origin of the article. The provider had argued that the right to be forgotten should not be applied to media, as this otherwise would mean a massive interference with the freedom of press and opinion.

It is not clear yet, if international courts are going to follow the decision. As for Germany, the Higher Regional Court (Oberlandesgericht) of Hamburg already decided more than a year ago, that the judgement on Google v. Spain had to be applied directly to online archives of newspapers. Experts also expect the German Federal Court (BGH) to reconsider its previous jurisprudence concerning online archives in view of the right to be forgotten.

Tobias Raab is an Attorney at Law and works as freelancer at the Institute of European Media Law (EMR), Saarbrücken/Brussels.

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The decision can be found in Italian language here.





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