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In a proceeding on the right to be forgotten, the Supreme Court in Italy cancelled the measures imposed by the Italian privacy authority, the Garante, against the Yahoo search engine through which it was ordered the deletion and removal of URLs on news events related to an individual.
With measure February 25, 2016, the Italian data protection authority intervened against Yahoo towards which an individual had asked to exercise the right to be forgotten, i.e., the removal from the web of their data and any reference to news events involving him but that would no longer be current, for which, therefore, had come to lack the public interest.
In particular, the Garante asked the search engine to “provide for the definitive removal of the URLs indicated in the appeal, also eliminating the cache copies of the pages accessible through such URLs, within thirty days from the receipt of this measure“. Therefore, there was not merely a request for de-indexing. Still, for the removal of the URLs concerning the interested party: when only content is de-indexed, without removing it, the page is only removed from the search results, but it still exists and can be visited by those who know the source code. While, by removing the page, it will no longer be possible to visit it in any way.
Yahoo, following the order of the Italian privacy authority, appealed to the Italian Supreme Court, the Court of Cassation, challenging the request for deletion of data referred to the person concerned, considering it an excessive request, and asked, among other things, that it was exercised a balance between the interests of the individual and those of the community to be informed.
In this regard, the United Sections of the Italian Supreme Court cancelled the measure imposed by the Garante, stating that it is always necessary to balance the interests of the individual and those of the community and that this is achieved through the de-indexing of content on the web, which represents, more often than not, the actual point of balance between the interests at stake, integrating the will of the person concerned to be forgotten and excluding extreme solutions of total cancellation of the news.
The approach of the Supreme Court in the case on Yahoo in Italy is in line with the EDPB Guidelines 5/2019, which dictate criteria for the exercise of the right to be forgotten in the case of search engines under the GDPR of July 7, 2020, according to which “the de-indexing of a particular content determines the deletion of it from the list of search results related to the data subject, when the search is, in general, carried out from his name; as a consequence, the content must remain available if other search criteria are used, and de-indexing requests do not entail the complete deletion of personal data, which must be deleted neither from the website of origin nor from the index and cache of the search engine provider“. Therefore, the right to be forgotten can also be achieved through de-indexing alone.
On the subject of the right to be forgotten, you might be interested in the article “Google convicted for late de-indexing following a right to be forgotten request“.
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