Google, dismissal of criminal proceedings does not give right to be forgotten

The note of the judge useful for the de-indexing,  placed on the decision to dismiss a criminal case, does not automatically trigger the right to delisting onGoogle of the news item involving the person concerned. Even after the Cartabia reform, which introduced a fast track for requesting de-indexing in the event of acquittal, archiving or non-prosecution, the variables of elapsed time and interest in the news of the public role played remain valid. The Court of Cassation has thus put an end to the long querelle with Google and the Privacy Guarantor, engaged by a professor, professor of commercial law and scientific director of the Mercatorum University - involved in 2020 in an investigation by the Public Prosecutor's Office of Bari, which ended with a dismissal - who was contesting the way in which the Puglia Agency for the Right to Study had entrusted him with a legal assignment.

In the decree of dismissal, in which the transaparence of the assignment was noted, the Gip had noted, on the basis of Article 64b of the Implementing Provisions of the Code of Criminal Procedure - which regulates "the right to oblivion of defendants and persons under investigation" -, the indication that the act was useful to obtain de-indexing. A request only partially accepted by the Mountain View giant in California, which had left on the web some links, by virtue of a still existing interest in the news. The professor had not had better luck with the Privacy Guarantor, who, in the case examined, had considered Google's behaviour to be correct, with a view to balancing the different interests at stake: protection of the freedom of expression and information and the right to be forgotten.

The scales therefore weigh: the time factor, the public relevance of the information, its topicality and accuracy and, finally, the role played by the person concerned in public life.

A correct criterion for the Supreme Court also in light of the Cartabia reform. The judges of legitimacy rejected, therefore, the appeal with a very articulate ruling, clarifying that the annotation of the de-indexing envisaged by the Cartabia reform and inserted on a judicial document does not trigger an absolute presumption of foundation of the claim. Therefore, the addressee of that measure is not precluded from assessing its compliance. The same subjects - the search engine operator, the administrative authority, and the judicial authority - who, before the entry into force of the rule, had the power to assess the green light to delisting can still do so, 'balancing, in concrete terms, the protection to be afforded to the person concerned to be forgotten and the rights to information, of chronicle and related'.

In conclusion," the Court clarifies, "a piece of data lawfully posted on the web may legitimately remain there until the reasons that justified itspublication have ceased to exist in view, inter alia, of an appreciable lapse of time since it was posted. At the end of which it will be possible to obtain de-indexing by the search engine operator, by the administrative authority in charge or, finally, by the judicial authority, provided that the other prerequisites are met, which are also provided for by EU Regulation 2016/679 (General data protection regulation).