Diritto all’oblio

Various rights of data subjects are included in the GDPR. One of these rights is the right to erasure. It is possible that for certain reasons you want your personal data to be removed from public archives or internet search results. Then we speak of the “diritto all’oblio” . For example, in the Cotija judgment it was decided that Google had to remove certain personal search results, because the right to be deleted or forgotten takes precedence over the right to find information about Mr. Cotija. However, this does not mean that a request to be forgotten must always be complied with, as illustrated by the two lawsuits discussed below.

Public interest and press freedom

In 1982, Mr. T. was convicted by a German judge for the murder of two people on a yacht in the Caribbean. The story of this murder is picked up in the media and in several articles his full name appears. Mr. T. is serving his time in prison and after twenty years he is released. However, he cannot escape his past, because the articles about the murder he committed can still be found in online search engines in 2009. People who type his name into these search engines are presented with various news stories describing the murder. Mr. T. is of the opinion that this is an obstacle to his free development and therefore decides to make use of his right to be forgotten. He submits a request for removal of the articles. In the first instance, however, the judge comes to the conclusion that the public interest and freedom of the press outweigh Mr. T.’s right to privacy.

But this decision will still be overturned by the highest German court at the end of 2019, almost 40 years after the murder . Because the public interest with regard to Mr. T.’s right to privacy has diminished over time, this court of appeal decides that the man may no longer be called by name and that he also has the oblio immagini.

Privacy

Shortly after the ruling of the German court, the judge in the Netherlands is faced with a similar case. Julien C. kills an 8-year-old boy in 2006. He is sentenced to 12 years in prison with TBS. After having served the sentence, he goes through a rehabilitation program and follows treatment in connection with the tabs, which he has been ordered to do. This case also received a lot of media attention at the time and Julien C. is also of the opinion that his personal development, now almost 14 years after the murder, is being hindered. After all, he can still be found as a murderer in online search engines. However, the courting his case to a different decision. The judge decides that Julien C.’s data does not need to be deleted, because he considers it more important that society knows that Julien C. committed this murder than that Julien’s privacy is guaranteed sharenting.

Two murder cases, two requests to be forgotten and yet a different outcome

How is it that in these two cases, which are largely similar in terms of facts, the judge still arrives at two different decisions? This has to do with the fact that in cases such as this a balancing of interests has to be made, when someone wishes to make use of his right to be forgotten. In that case, it is necessary to consider what weighs more heavily in the specific case: this right to be forgotten or, for example, the public interest or freedom of the press.

This balancing of interests is therefore the reason that a different ruling is given in the German case than in the Dutch one. The consideration in both cases takes into account the elapsed period and how the men behave after their release. Whereas in the case of Mr. T. 40 years have passed since the murder and he behaved properly after his release, in the case of Julien C. only 14 years have passed, Julien C. has not yet completed his rehabilitation program and his treatment. completed and he has made several mistakes since his release. The judge therefore decides that in the case of Mr. T. the public interest and freedom of the press no longer outweigh his personal interest, while Julien C.’s personal interest does not (yet) weigh sufficiently against other interests.

The conclusion that can be drawn from these two cases is therefore that while the GDPR provides for a number of strong rights for data subjects, these rights are not absolute. The right to be forgotten can be at odds with other rights or interests. In that case, a balancing of interests must be made between the privacy interest of the data subject on the one hand and, for example, the freedom of expression on the other. The outcome of the balancing of interests may then be that the personal data does not have to be deleted.