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The European Court of Human Rights and the right to erase history – Andrea Monti

The judgment issued by the First Chamber of the European Court of Human Rights(ECHR) on 25 November 2021 in case 77419/16 (Biancardi v Italy) increases the scope of the ‘right to be forgotten’. It holds that de-indexing is directly applicable to online publications hosting an article and not only to search engines allowing its retrieval.

The case concerns an Italian online newspaper convicted in a civil action by the Court of Cassation for not having de-indexed a news. The Court held it as no longer current and therefore – this is the heart of the matter – of not being any more of public interest. It was related to an ‘ordinary’ instead of a ‘public’ person.

Attempting an impossible mediation, the ECtHR upholds the decision of the Italian Supreme Court. It confirms that non-defamatory news (and therefore lawfully published) concerning an ‘ordinary person’ should not be deleted. However, it also upholds that the article ought to be ‘only’ de-indexed by the newsmagazine who published it. In other words, the article may remain online, but it must not be possible to retrieve it (unless one knows its deep link.)

In applying this principle, online newspapers —all online newspapers— should go back through their archives to appraise each article individually and decide whether to de-index it from their search engines. They should implement ‘self-deindexing’ functions in their platforms. They should even assess whether or not to publish news at all to avoid being inundated with injunctions and legal actions.

The importance of memory to preserve knowledge

The ECtHR did not go as far as to acknowledge the obligation to delete online content permanently. However, it denies (or does not consider) the fundamental role of ‘ordinary’ journalistic news for historical and sociological research. The preservation of collective memory, the possibility for scholars to know how we were, understand how we have become to guess how we will evolve, the reconstruction of local history are essential for the identity of a country. Chronicles from the past are crucial. How many ‘facts’ have been reconsidered? How many people have been found innocent —or instead held responsible— for accusations that could be re-read differently? How many cold cases have been —and can be— re-opened?

The end of historical research?

The principle that only information concerning public persons can remain accessible is paternalistic discrimination and —above all— a blow to the sources on which historians carry out their analyses.

In other words, there is a pact that spans over time between the journalists of today and the scholars of the future: what we create and preserve today are the elements that tomorrow will allow understanding and explaining the World.

A misunderstood sense of privacy

The Court’s decision breaks this covenant. It is yet further proof of the damage caused by the prevailing hysterical and distorted perception of ‘privacy’ and the ideological enforcement of the data protection legislation. In the name of these talismans, we have given up on effective contact tracing of coronavirus infections and are now advancing in forced stages towards memory erasure.

There are various critical elements in the Biancardi decision. First, the Court states that the right to protection of personal data has the power to ‘interfere’ with freedom of expression. However, it fails to recognise that freedom of expression is different from freedom of the press protected by the Italian Constitution. Thus, the public interest in ensuring the independence of journalists should have prevailed.

Secondly, but no less importantly, personal data protection is instrumental to the protection of fundamental rights. Therefore, personal data protection cannot be invoked in favour of the individual when public interest is at stake. The reasoning is identical to the one that supports the need to vaccinate: the individual’s right cannot prevail over the collective interest. In the first case to public health, in the second to the grassroots control of citizens over the powers-that-be and memory preservation. The Data Protection Regulation clearly supports the right to have one’s personal data deleted. However, it explicitly excludes the case of freedom of expression, in respect of which the right to erasure does not operate.

Thirdly, but this is a matter of interest mainly to politicians and jurists, EU legislation of any kind cannot affect national interests. Therefore, the Court should have also considered this profile in its decision and asked itself whether or not the EU ‘laws’ could have overtaken the Italian Constitution. It did not do so.

Why this judgment is troubling

Scire est reminisci – to know is to remember – theorised Plato and therefore not to remember is not to know. Therefore, a ruling whose implication is the erasure of memory is a judgment that bans knowledge. In the name of an individual’s ‘right to be forgotten’, the European Court’s decision contributes to condemning the whole of society to the barbarity of ignorance and lays the foundations for the largest indirect censorship crackdown of our times.

Initially published in Italian by Italian Tech

3 Comments

  1. Dirk Voorhoof

    I agree that the judgment in Biancardi v Italy is a dangerous step backwards with regard the application of Article 10 ECHR on freedom expression in the digital environment, as the judgment denies the consequences of its reasoning and it overprotects the ‘right to be forgotten’ at the detriment of the integrity and accessibility of online (news) archives.

    But in criticising the judgment one must also be correct in the analysis. The blog says that the judgment means that “In applying this principle, online newspapers —all online newspapers— should go back through their archives to appraise each article individually and decide whether to de-index it from their search engines. They should implement ‘self-deindexing’ functions in their platforms. They should even assess whether or not to publish news at all to avoid being inundated with injunctions and legal actions.”

    I am not sure that this is what is in the judgment, although I agree the judgment may create this impression. The confirmation by the ECtHR of the conviction of Biancardi is based on the finding by the Italian courts that the article has not been de-indexed after the request by the private person at issue (see par. 13 of the judgment: “The court (..) noted in particular that the information concerning the claimants had been published on 29 March 2008 and had remained accessible on the Internet until 23 May 2011, notwithstanding V.X.’s formal notice to the applicant asking that the article in question be removed from the Internet”. The ECtHR refers in its judgment to this (crucial) element : “(..) notwithstanding the formal notice that V.X. sent to the applicant requesting the removal of the article from the Internet, the said article remained online and easily accessible for eight months”. This means that the judgment does not install a general obligation for all online newspapers to “de-index” on their own initiative or install “self-deindexing functions in their platforms”, but that only after request by a private persons who legitimately can invoke a right to be forgotten with regard a specific article, the online platform can be held liable or found guilty for breach of the right of to be forgotten and of the data protection law in case the platform has unlawfully refused to de-index the article at issue on request of the private person named in that article.

    And no misunderstanding: even in this scenario the judgment of the ECtHR in Biancardi v Italy is not in line with the Court’s other case law on the application of Article 10 in the digital environment (see also Dirk Voorhoof: ‘Same standards, different tools? The ECtHR and the protection and limitations of freedom of expression in the digital environment, in Michael O’Boyle (ed.), Human Rights Challenges in the Digital Age : Judicial Perspectives, Strasbourg, Council of Europe Publications, 2020, p. 11-46)

    The judgment surely deserves a referral to the Grand Chamber in order to make the case law of the ECtHR consistent with its former jurisprudence on the integrity of (news) archives and in relation to the pending case before the Grand Chamber in Hurbain v Belgium.

    Dirk Voorhoof, Human Rights Centre UGent/Legal Human Academy

  2. Andrea Monti

    ECHR rulings can not – per se – settle general obligations. However, it does not preclude the possibility for national courts and censorship-seeking subjects to adopt the legal interpretation provided by the ECHR.
    This ‘liquid’ approach translates -at national level – into a passepartout to justify a ruling by quoting a ‘higher authority’.

  3. Andrea Monti

    ECHR rulings can not – per se – settle general obligations. However, it does not preclude the possibility for national courts and censorship-seeking subjects to adopt the legal interpretation provided by the ECHR.
    This ‘liquid’ approach translates -at national level – into a passepartout to justify a ruling by quoting a ‘higher authority’.
    Andrea Monti – Adjunct professor of Digital Law – University of Chieti-Pescara

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