The sentence handed down on case 77419/16 (Biancardi v Italy) by the First Section of the European Court of Human Rights on 25 November 2021 increases the scope of the “right to be forgotten” which it deems also applicable directly to online and non-online newspapers. only to search engines.
The case concerns an Italian online newspaper condemned in civil proceedings by the Court of Cassation for not having de-indexed a news article deemed no longer current and therefore – this is the knot – devoid of public interest because it relates to a “common person” and not to a public figure.
Attempting an impossible mediation, the European Court supports the decision of the Italian Supreme Court and confirms that an article, although not defamatory (and therefore lawfully published) relating to a “common person” should not be deleted, but must be “only” de-indexed both by the engines of research, both by the publishers who published it. In other words, the article can also remain online but it must not be possible to retrieve it if you do not know the direct link to reach it.
In application of this principle, the online publications – all the online publications – will have to reconsider their archives to individually evaluate each single article and decide whether to de-index it also from their own search engines, implement “self-indexing” functions in their platforms, and will even have to ask themselves the problem, for the future, what to publish or not to avoid being overwhelmed by appeals and legal actions.
The importance of memory to preserve knowledge
Despite the sop of excluding the obligation to delete content, in fact the Court denies (or does not take into consideration) the fundamental role of “ordinary” news reports for historical and sociological research. The conservation of collective memory, the possibility for scholars to know “how we were” and to understand how we have become and how we will become, the reconstruction of local history are essential for the identity of a country. Thanks to the work of journalists of the past, how many events have been rewritten, how many people rehabilitated – or instead held responsible – for facts that in the aftermath it was possible to re-read how many cold case are they and can they be reopened?
The end of historical research?
Establishing the principle that only news concerning public figures can remain accessible is a paternalistic discrimination but above all, precisely, a blow to the system of sources on the basis of which historians make their own analyzes.
In other words, there is a pact that spans time between the journalists of today and the scholars of the future on the basis of which today we create and preserve the elements that will allow us to continue to understand and explain the world tomorrow.
A misunderstood “sense of privacy”
The Court’s decision breaks this pact and is yet another proof of the damage caused by the prevailing hysterical and distorted perception of “privacy” and by the ideological application of the legislation on the protection of personal data. In the name of this fetish we have given up on effective contact-tracing of Coronavirus infections and now we are advancing in forced stages towards the erasing of memory.
From these premises, it is easy to understand that there are several critical elements in the Biancardi decision.
First, the Court states that the right to the protection of personal data has the power to “interfere” with freedom of expression. However, the Court does not consider that freedom of expression is different from the function and right to freedom of the press – that is, of information – protected by the Constitution. Therefore, the public interest in guaranteeing the independence of journalists should prevail but the judges think differently.
Secondly, but not least, there is the consideration that the protection of personal data is an instrumental to the protection of fundamental rights. Therefore, the protection of personal data cannot be invoked to protect the individual when a public interest is at stake. The reasoning is identical to that which supports the need to be vaccinated: the right of the individual cannot prevail over the collective interest. In the first case to the widespread control of citizens over power and the preservation of memory, in the second to public health. This is so true that the Personal Data Protection Regulation allows for the right to have your personal data deleted, explicitly excluding the case of freedom of expression, against which the right to ask for data to be deleted does not work.
Thirdly, but this is a topic of interest more to politicians and jurists, Community legislation, of any kind, cannot affect national interests and the rights guaranteed by the Constitution. So the Court should also have considered this profile in its decision and wondered if the community “laws” could be superseded or not by the Italian Constitution, but it did not.
Because this sentence is serious
To know is to remember —Knowing is remembering— Plato theorized and therefore, as my professor of criminal law put it in class, not remembering means not knowing. Therefore, a sentence that requires the cancellation of the memory is a sentence that forbids knowing. In other words, in the name of an individual’s “right to be forgotten”, the decision of the European Court contributes to condemning the whole of society to the barbarism of ignorance and lays the foundations for the most massive indirect censorship of our times.
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