How Biancardi vs. Italy Reinforces your Right to be Forgotten

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How Biancardi vs. Italy Reinforces your Right to be Forgotten

Researched and written by: Nathan Martin, Intern at Family Law Italy from the University of Arkansas.

In November of 2021 a judgement in the case of Biancardi v. Italy was handed down by the European Court of Human Rights (ECHR). This case was about an alleged violation of Article 10 of the European Convention of Human Rights, a convention which is binding on all who have signed and ratified it. Italy is party to this treaty, so Italy is subject to the jurisdiction of the European Court of Human Rights. Article 10 covers freedom of expression, and in this case the applicant, Biancardi, alleges that this right was violated by the state of Italy. This case stems from an article published by Biancardi concerning a fight and criminal proceedings being filed against a private individual that later formally requested that Biancardi de-index this article, which means that the article would not show up on search engines. This request relates to an individual’s right to privacy under Article 8 of the convention and of an individual’s right to privacy under Italian law. This also relates specifically to the right to be forgotten under Article 17 of the General Data Protection Regulation which is a regulation of the European Union (1). This case is important for the average person because when the ECHR ruled in favor of Italy, it reinforced a private individual’s right to privacy even when considering journalism, a practice that typically enjoys very strong protections around its freedom of speech.

In deciding whether or not someone or some institution must de-index an article about someone the competing interests of an individual’s right to privacy and the right to freedom of expression of the publisher of the article are weighed against one another. The relevance and interest to the public at large is a big factor weighed, as is the purpose of the publishing of the information (1). In fact, Italy’s Personal Data Protection Code states that personal data that is processed can be kept in a personally identifiable form for “a period not exceeding the time necessary to achieve the objectives for which the data have been collected and subsequently processed” (1). In this case, the individual’s name was published for reporting the news about a fight and who was involved. The court found that as time passed, the balance between freedom of expression and right to privacy shifted further and further towards right to privacy as the purpose of reporting the news of this fight was mostly served in the immediate time frame afterwards. That doesn’t mean that the article had to come down or even that it had to be anonymized as people who were genuinely interested in the event still should be able to access information about it, just that the right of privacy for an individual lets them force this kind of content to be removed from search engine results in order to protect their privacy and reputation. De-indexing an article doesn’t purge it from the internet entirely, but it does make it more difficult to access because you can’t just find it in a search engine’s results. This decision by the court does further reinforce the right of private citizens to be forgotten, as this decision was made against a journalist. While citizens can’t force articles completely offline they can significantly reduce the impact of negative published information about them. This case is a huge win for the right of private citizens to remain private and does help solidify your rights in this respect.

European Court of Human Rights. Biancardi v. Italy. 25 Nov. 2021. Human Rights Documentation (HUDOC), https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22Biancardi%20v.%20Italy%22],%22languageisocode%22:[%22ENG%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-213827%22]}. Accessed 29 June 2022. 

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