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BIANCARDI v. ITALY JUDGMENT Article 9: Rights of the data subject “1. Every individual shall have a right: ... e. to obtain, on request, free of charge and without excessive delay, rectification or erasure, as the case may be, of such data if these are being, or have been, processed contrary to the provisions of this Convention; ...” Article 11: Exceptions and restrictions “1. No exception to the provisions set out in this Chapter shall be allowed except to the provisions of Article 5 paragraph 4, Article 7 paragraph 2, Article 8 paragraph 1 and Article 9, when such an exception is provided for by law, respects the essence of the fundamental rights and freedoms and constitutes a necessary and proportionate measure in a democratic society for: ... b. the protection of the data subject or the rights and fundamental freedoms of others, notably freedom of expression.” III. EUROPEAN UNION LAW MATERIAL A. Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 18. Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, OJ 1995 L 281, p. 31 (“Directive 95/46/EC”) was designed to protect individuals’ fundamental rights and freedoms (including their right to privacy) in the processing of personal data, while at the same time removing obstacles to the free flow of such data. The relevant Articles read as follows. Article 8: The processing of special categories of data “... 5. Processing of data relating to offences, criminal convictions or security measures may be carried out only under the control of official authority, or if suitable specific safeguards are provided under national law, subject to derogations which may be granted by the Member State under national provisions providing suitable specific safeguards. However, a complete register of criminal convictions may be kept only under the control of official authority. Member States may provide that data relating to administrative sanctions or judgements in civil cases shall also be processed under the control of official authority.” Article 9: Processing of personal data and freedom of expression “Member States shall provide for exemptions or derogations from the provisions of this Chapter, Chapter IV and Chapter VI for the processing of personal data carried 8

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Biancardi v. Italy

Case Law

Country

Italy

Country Location

Latitude: 42.82063999428387

Longitude: 12.730955243111072

Country Location (linked Case Law): Italy

Decision Date: Nov 25, 2021

Case Status: Closed

Case Outcome (Procedural)

Admissible

Case Outcome (Disposition)

Law or Action Upheld

Keywords

Data Protection and Retention
Defamation / Reputation
Digital Rights
Freedom of Press
Privacy
Right to be Forgotten

Judicial Body: European Court of Human Rights (ECtHR)

Court Name: European Court of Human Rights (ECtHR)

Case Number: 77419/16

Case Summary: The European Court of Human Rights unanimously decided that de-indexing requests against online publishers can be successful and in the present case, did not violate the publisher’s freedom of expression protected by Article 10. The applicant was an editor-in-chief of an online newspaper that published an article describing a fight at a restaurant and the criminal proceedings that ensued. The person described in the article requested the applicant to remove and de-index the article which was not granted. The Italian courts held that by not de-indexing the article, the publisher had made the article easily accessible online for a significant period and violated the applicant’s right to reputation protected by Article 8. The ECtHR upheld the decision. It also upheld the non-pecuniary damages granted to the applicant against the editor, in consideration of the sensitive nature of the personal data published. It found that publishing supplementary or clarificatory information would be insufficient to balance the applicant’s right’s under Article 8 against the publisher’s rights under Article 10.

Case Significance: The decision contracts freedom of expression. The Court clarified that de-indexing requests are not limited to search engines and can be brought against news publishers, including journalists, maintaining online archives. The court considered factors such as sensitivity of the data published, the private nature of the applicant, the fact that the article was not updated and that the request was for de-indexing, not removal, to conclude that the applicants right to reputation under Article 8 outweighed the applicants right to publish information under Article 10.

Jacob van de Kerkhof, writing for Strasbourg Observers, further noted that the judgment widens the scope of the right to be forgotten weighing in favor of the right to private life over the right to freedom of expression when the case concerns de-indexation. “That weight is reinforced by a seemingly shorter period in which an article can be considered ‘newsworthy’, especially when the claimant is relatively unknown to the public.”

The decision establishes a binding or persuasive precedent within its jurisdiction.

Related Caselaw (self)

Source URL: Global Freedom of Expression

Collection

Columbia

Date Updated: Jul 3, 2024

Primary Documents

Judgment
English
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CYRILLA: Global Digital Rights Law

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Biancardi v. Italy

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