Italy, Rome Tribunal, 3 December 2015

Identification of the case

• Respect for private and family life (art. 7 CFREU)
• Protection of personal data (art. 8 CFREU)

• Legislative Decree n. 196/2003

• Article 7 of the CFREU
• Article 8 of the CFREU

Summary of the case

The plaintiff asked for the de-indexing and removal of fourteen url links, displayed when inserting his own name on the search engine bar and reporting his involvement in a judicial proceeding, eventually concluded with his full acquittal.

• Civil judicial enforcement

Removal of a series of url links from the results displayed on the internet when inserting on the search bar the name of the plaintiff.

The Court directly refers to the Google Spain decision, stressing how the CJEU set the criteria to assess the relationship between the right to protection of personal data and the right of information, by applying the principle of proportionality and carrying out a balance of interests. The Court, reporting the findings of the CJEU, highlights that, in matters concerning the results displayed on a search engine provider page, the data subject cannot ask for the removal of pages containing his/her data if such data are related to information which are recent and of relevant public interest. The Court then states that, pursuant to Articles 7 and 8 of the CFREU, the Right to privacy has the status of fundamental right and, in principle, must prevail over the right to information. The exception to such rule is then contained within strict boundaries and the judge must use some criteria in order to determine whether or not deem such exception admissible: one of these criteria may be the passing of time, meaning that recent information can be regarded as more relevant to the public. Another criteria, as also pointed out by Article 29 of the Data Protection Working Party, can be the public role played by the data subject. In the case examined, since the data subject played a public role and the information contested was fairly recent, the Court rejected the complaint filed by the plaintiff. In last place, the Court also rejected the complaint brought on against the search engine provider, regarding the wrongfulness of the information displayed: the Court highlighted that the search engine provider, as mere caching provider, cannot be deemed liable for the wrongfulness of the information displayed on the pages indexed.

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

Article 7 and 8 of the Charter were applied in order to stress the status of fundamental right assigned to the rights to respect for private and family life and to protection of personal data. The Court, when assessing the role played by these two articles, basically reports the reasoning developed by the CJEU in the Google Spain case.

• Right to an effective remedy before a tribunal

The decision examined emphasizes in first place the importance of Articles 7 and 8 of the CFREU, by upholding the status of fundamental rights assigned to the right to respect for private and family life and to protection of personal data. In second place, the Court, by heavily referring to the Google Spain decision, also upholds the idea that an effective protection of the right to protection of personal data requires that the data subject can ask for the removal, from the results displayed on a search engine provider, the url links containing his/her personal data. On the other hand, as stressed by the Court, the removal of such links can be justifiably refused when, according to the principle of proportionality, there is a public interest which outweighs, in the particular case, the rights conferred by Article 7 and 8 of the CFREU.

• Proportionality

The Court, by referring to the Google Spain decision, embraces the idea of a balance of interest judgment governed by the principle of proportionality and, in light of such judgment, decides whether or not the removal of the contested url links is justified. In particular the Court refers to the criterion of the passing of time, as previously analysed by the CJEU and put in relationship with the proportionality test. In second place, the Court refers to Article 29 of the Data Protection Working Party when emphasizing the importance of the role played by the data subject in the public life. Both of these criteria basically serve the purpose to fulfil the proportionality test.

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

Conform interpretation with EU law as interpreted by the CJEU

The Court, when referring to the Google Spain decision, seeks to reinforce its own reasoning by embracing the interpretation of the EU Law given by the CJEU. Moreover, the Court also refers to some decision of the Court of Cassation – e.g. Decision n. 5525/2012, which first introduced the concept of proportionality when assessing the relationship between the right to privacy and the right to information – in order to build up its reasoning over an established case law both at the national and the European level.

To reinforce the reasoning developed by the Court.