Right to be forgotten and right to inform and publish information: the Unified Section of the S.C. i

The difficult balancing between the right to be forgotten and the right to inform was recently brought to the attention of the Italian Supreme Court that, given the significance of the matter, rendered an order containing the request for a preliminary ruling to its Unified Section.

Under Italian law, although it firstly appeared in the caselaw at beginning of the nineties, the right to be forgotten has been recognized only recent years.

In fact, rules containing protection of such right were introduced only with the entrance into force of EU Regulation 679/2016. The term "right to be forgotten" refers to the right, belonging to all individuals, not to remain undefinedly exposed to damages to their reputation determined by the repeated publication of news that were legitimately published in the past.

From the above-mentioned definition it should result clear that the right at hand tends to contrast, more and more often, with the diverse right to inform.

The latter, protected by Article 21 of the Constitution, represents the right to disclose information relating to facts or events of public interest and which, according to settled caselaw, is subject to the strict limits of “truthfulness”, “continence” and “relevance” (see, among many others: Italian Supreme Court May 8th, Decision n. 6902 of 2012).

The case brought before the Court entailed the publication of an article recalling facts which took place 27 years earlier. Moreover, the name of the person who was convicted for the same facts was expressly mentioned in the article. As a consequence, he brought a claim damages, on the basis of the alleged violation of his right to be forgotten, against the author of the article and the newspaper publisher.

The case ended up before the third Section of the Supreme Court that promptly decided to request the intervention of its Unified Section since, in view of its authority, it was the only judicial body capable of providing a binding determination of the width of the right to be forgotten and the limits within which within which a public interest to the re-publishing of events affecting the rights of individuals shall prevail.