Italy, Milan Tribunal, 28 February 2017

Identification of the case

• Protection of personal data (art. 8 CFREU)

• Article 2 of the Italian Constitution
• Articles 2, 7 and 11 of Legislative Decree n. 196/2003

• Articles 1 and 7 of Directive n. 95/46

Summary of the case

The plaintiff, a University professor and member of an independent authority, asked for the annulment of a decision of the NDPA, rejecting the request for the removal, from the results indexed by a search engine provider, of a link to a post of a personal blog containing personal information about the plaintiff, upholding a view according to which her appointment as member of an independent authority was due to political affiliation. Such information had been in first place contained in an newspaper article. After asking a provisional order to remove such article, the plaintiff had concluded an out-of-court transaction with the newspaper, which had promptly cancelled the article from its online archive. The same article had nevertheless been displayed on a personal blog which was indexed by one of the most relevant search engine provider so that, by inserting the name of the plaintiff, the sixth result displayed was the link to such post. The plaintiff had therefore submitted several requests to the search engine providers, through the “notice and takedown” procedure, asking for the removal of such link, but the provider had always rejected her requests. A subsequent claim brought on before the NDPA was also dismissed by the latter, citing the presence of a public interest to the knowledge of the information regarding her and her career. The plaintiff then asked, before the Tribunal, the annulment of such decision of the NDPA and the subsequent removal of the link from the results indexed by the provider.

• Civil judicial enforcement
• Administrative judicial enforcement

Annulment of a NDPA decision

In first place, the Court focuses on the object of the cause decided, defining it as the “protection of the right to personal identity” of the plaintiff. The alleged harm to the plaintiff’s honor and reputation – the Tribunal points out – cannot be brought as an argument against the search engine provider, which is indeed not liable for the content of the web pages indexed.

In second place, the Tribunal refers directly and explicitly to the CJEU’s reasoning the Google Spain case, by heavily quoting it and focusing, in particular, on the concept of “balance of interests” between the protection of personal data and the public interest concerning the knowledge of certain information. Following the CJEU’s reasoning, the Tribunal points out that, in principle, within the context of such balance, the right to protection of personal data should always prevail over a public interest. Such public interest could prevail only when the data subject plays a relevant role in public life. In order to assess whether or not this occurs in the case examined, the Tribunal refers to the “Guidelines on the implementation of the Court of Justice of the European Union Judgment on Google Spain” issued by the Article 29 Data Protection Working Party in 2014, according to which the role played – i.e. public officers, politicians – and the degree of media exposure can be used as criteria to assess the public nature of the position of the data subject. The Tribunal, however, highlights that the right to personal identity, as laid out in Article 8 of the ECHR but also related to Article 2 of the Italian Constitution and Art. 3 of ECHR, is what constitutes the most advanced level of protection of the individual in balance with the right to information and economic initiative. Such right must therefore be regarded as most relevant interpretative criterion guiding the judge. Focusing, then, on the information displayed on the blog (i.e. the same information previously written on the newspaper article), the Court observes that such information are outdated and incomplete, not mentioning the circumstance that those criticizing the appointment of the plaintiff as a professor remained isolated opinion and that the plaintiff had given continuous proof of her competence and expertise. The public interest, which could theoretically exist given the public role played by the plaintiff, cannot be deemed relevant and the search engine provider must remove the link contested from the results indexed when inserting the name of the plaintiff.

Role of the Charter and role of the general principles on enforcement

Though the Charter is not directly mentioned by the Tribunal, its decision heavily quotes the Google Spain one, even in the part where the CJEU focuses on the scope of Articles 7 and 8, protecting private life and personal data. Moreover, the Tribunal develops a concept of right to personal identity, as one of the interests balanced and as an interpretative criterion, which can be easily put in tight relationship with Articles 7 and 8 of the Charter.

• Right to an effective remedy before a tribunal

The Tribunal cites Article 2 of the Italian Constitution – recognizing and protecting the fundamental and inviolable rights of the individual – in order to assess and clarify its view on the concept of “right to personal identity” as a fundamental right which must therefore guide the judge when carrying out a balance of interests. The Tribunal also refers to Article 41 of the Constitution – i.e. freedom of economic initiative – which, together with the freedom of expression, forms the second “branch” of the interests’ balance.  

The rights laid out in the CFREU and ECHR as reported above play a double role in the Tribunal’s reasoning: i) they represent a branch of the interests’ balancing process, meaning that the judge must assess whether or not they can outweigh the public interest occurring; ii) they represent an interpretive criterion to be used by the judge, in the sense that, given the fundamental status they have, the judge should always, in principle, give priority to the protection of the right to personal identity over a public interest occurring in the case.

• Effectiveness
• Proportionality

The Tribunal does not directly mentions the principle of effectiveness, but it heavily implies that, as in Google Spain, it is on the basis of such principle that the whole reasoning is based. In particular, the Tribunal points out – as the CJEU had done in Google Spain – the activity carried out by the search engine providers and their impact on the internet users community as well as on the diffusion of the information contained in indexed websites. The Tribunal highlights that, on account of their diffusion, importance, easy management and access, search engine providers affect the right to protection of personal information to an extent not reached by other websites, even those actually containing the personal information contested.

The Court applies the principle of proportionality following the indications already laid out in the Google Spain decision: such principle therefore becomes the main criterion to assess the relationship between the right to protection of personal data – the Tribunal actually refers to the “right to personal identity” – and the right to information, meaning that the personal data can be processed only when there is a public interest such relevant that the limitation of the right to protection of personal data is justified and proportional, as also upheld by the decision of the Court of Cassation n. 5525 of 2012.  

Elements of judicial dialogue

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)
• Dialogue between high court - lower instance court at national level

• CJEU C-131/12, Google Spain
• CJEU C-509/09, C- 161/10, eDate Advertising et a.

Conform interpretation with EU law as interpreted by the CJEU

Proportionality

The Tribunal adopts the same reasoning developed by the CJEU in the Google Spain case, and in doing so it also upholds the principle of proportionality as main interpretative criterion.

To seek a decision displaying a reasoning which is in harmony and accordance with the findings of the CJEU, and also to reinforce a trend in national case-law.