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BIANCARDI v. ITALY JUDGMENT RELEVANT LEGAL FRAMEWORK AND PRACTICE I. RELEVANT DOMESTIC LAW Legislative Decree no. 196 of 30 June 2003 (Personal Data Protection Code) 15. The relevant provisions of the Personal Data Protection Code read as follows: Article 7: Right to access personal data, and other rights “... 3. (a) The data subject has the right to obtain the removal, the anonymisation or the interruption of the processing of data that are being used illegally. ... Article 11: Arrangements for the processing and categorisation of data “1. Personal data undergoing processing are: ... (e) kept, in a form that allows the identification of the person concerned, for a period not exceeding the time necessary to achieve the objectives for which the data have been collected and subsequently processed. ...” Article 15: Damage arising from data processing “A person causing damage to a third person as a consequence of the processing of his or her personal data must compensate the person concerned under Article 2050 of the Civil Code. The person concerned is also entitled to obtain compensation for nonpecuniary damage resulting from the breach of Article 11.” Article 25: Prohibition of communication and dissemination “Communication and dissemination are prohibited in respect of ...: (a) personal data whose removal has been ordered, after the period of time indicated in Article 11 § (1) (e) has elapsed ...” Article 99: Compatibility of the objectives and the length of processing “1. The processing of personal data for historical, scientific or statistical research purposes is considered to be compatible with the different objectives for which the data was initially collected or processed. 2. The processing of personal data for historical, scientific or statistical research purposes may be carried out also upon the expiry of the period that is necessary for achieving the different purposes for which the data was initially collected and processed. ...” 4

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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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