(by Federica De Stefani, lawyer and head of Aidr Regione Lombardia) The age-old problem of the balance between the right to be forgotten and the freedom of information returns to the center of a provision of the Guarantor for the protection of personal data.

The uncertain boundary between freedom of information on the one hand and the right to be forgotten on the other, in the meaning of the right to be forgotten (Article 17 of the Regulation states "right to be forgotten" translated into Italian 'oblivion), is - again - specified by the Guarantor who returns to deal with the case of an article published in a national online newspaper.

Specifically, a citizen asked to order the editor of the online newspaper to delete their personal data from an article published in excerpt in the online archive. The man, in fact, argued that the article was prejudicial to him and was no longer current, since it concerned a legal case, which occurred in 1998, in which he had been accused of aggravated embezzlement. The interested party also complained that the subsequent developments of the case had not been reported, resulting in a sentence of the Supreme Court prescribing the indictment. Finally, he complained that the publisher had not responded to his request for the exercise of rights.

The Guarantor, in examining the matter, once again underlines some important principles.

In the first place, as regards the right of journalistic news, the lawfulness of the processing of personal data of a person mentioned in an article is reaffirmed, since this right responds to the interest of the public to know the events reported, also in consideration of the professional activity and reputation of the aforementioned person (in this regard, see Article 6 of the Deontological Rules).

It should also be added that the processing of the personal data of the person to whom the news article refers is lawful even in the event that the news is inserted in an online archive.

In this case, in fact, although the news dates back over time, there is a legitimate purpose of historical archiving which, although different from the original purpose of news reporting, pursuant to art. 5, par. 1, lett. b) and e), of the Regulations and by art. 99 of the Privacy Code, is compatible with the same and therefore allows data to be processed beyond the period of time necessary to achieve the various purposes for which the data were previously collected or processed.

In the case subjected to the analysis of the Guarantor, access to the archive was then allowed only to users subscribed to the service and the news was traceable only through specific search parameters, such as title, author of the article or subject matter.

The Guarantor also underlines the suitability of the measure of de-indexing in the engines external to the online newspaper, which has now been arranged for some time, to guarantee the balance between the different and opposing interests of the parties, i.e. the right to be forgotten by the interested party and the right to journalistic information.

There remains a further aspect to consider, relating to the right of the interested party, to obtain the updating or integration of the news concerning him.

In the case analyzed, the update had never been carried out, but the investigation carried out by the Authority revealed that the failure to update was attributable exclusively to the inertia of the interested party who had never provided the publisher with the necessary documentation. to integrate the news by updating it with the latest developments, not being able, for this reason, to be in default.

Finally, the case analyzed involved the issuing of an administrative sanction for the publisher for failing to respond to the requests of the interested party aimed at exercising the right to be forgotten with reference to the article that saw him involved.

Although the procedure considered the requests of the interested party to be unfounded, the failure of the publisher to reply to the requests made has integrated an administrative offense pursuant to art. 83 paragraph 5 of the Regulation.

Right to be forgotten and freedom of information: what balance?

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