Garante per la protezione dei dati personali (Italy) - 9789124

Garante per la protezione dei dati personali - 9789124

Authority:	Garante per la protezione dei dati personali (Italy)
Jurisdiction:	Italy
Relevant Law:	Article 17(1)(c) GDPR Article 21(1) GDPR
Type:	Complaint
Outcome:	Rejected
Started:	27.07.2021
Decided:	09.06.2022
Published:	14.07.2022
Fine:	n/a
Parties:	Google LLC
National Case Number/Name:	9789124
European Case Law Identifier:	n/a
Appeal:	Unknown
Original Language(s):	Italian
Original Source:	Guarrantor for the protection of personal data (in IT)
Initial Contributor:	Jette

The Italian DPA held that Google LLC was not obliged to de-list search results linking to particular news articles, as the publication of the relevant information was in the public interest since it concerned ongoing judicial proceedings.

English Summary

Facts

The controller is Google LLC. The data subject was involved in a number legal matters.

Articles were published about these legal matters, which were found in search results in association with the data subject's name. The data subject asked the DPA to order the controller to remove these URLs, exercising his right to be forgotten (Article 17(1) GDPR).

The data subject claimed that the court proceedings were fully settled, resulting in an acquittal. Furthermore, he stated that they were outdated. The data subject therefore argued that there was thus no public interest concerning the right to freedom of information and journalism with regard to this articles.

The Controller stated that there was a public interest in the articles, as they related to conduct of serious criminal relevance committed by the data subject and in respect of which 'the outcome of the trial is unclear.'

Holding

The DPA found that, other than the data subject argued, the acquittal only related to a part of the charges. Furthermore, the articles in question also referred to other allegations against the data subject, in respect of which the judicial proceedings had not yet been concluded. Therefore the DPA held that the information in the articles were still relevant and in the public interest. The DPA held that the complaint was unfounded.

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English Machine Translation of the Decision

The decision below is a machine translation of the Italian original. Please refer to the Italian original for more details.

[doc. web n. 9789124]

Provision of 9 June 2022

Record of measures
n. 216 of 9 June 2022

THE GUARANTOR FOR THE PROTECTION OF PERSONAL DATA

IN today's meeting, which was attended by prof. Pasquale Stanzione, president, professor Ginevra Cerrina Feroni, vice president, dr. Agostino Ghiglia and the lawyer Guido Scorza, members, and the cons. Fabio Mattei, general secretary;

GIVEN the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (hereinafter, the "Regulation");

GIVEN the Code regarding the protection of personal data, containing provisions for the adaptation of the national system to Regulation (EU) 2016/679 (Legislative Decree 30 June 2003, n.196, as amended by Legislative Decree 10 August 2018, no. 101, hereinafter the "Code");

GIVEN the complaint submitted to the Guarantor, pursuant to art. 77 of the Regulation, on 27 July 2021 with which XX, represented by the lawyer XX, asked to order Google LLC to remove from the search results found in association with his name of some URLs linked to journalistic articles dating back to the XX and concerning a legal matter in which he was involved, which ended with his acquittal for non-existence of the fact;

CONSIDERING that the interested party has, in particular, noted:

that the contested article refers to a judicial measure with which the precautionary measure of house arrest was ordered "following the XX of the XX" for facts with respect to which he was subsequently acquitted with full formula for not having committed the done with a sentence that has become irrevocable;

the persistent availability of such information in association with one's name, in the light of the elapsed time and taking into account the subsequent judicial evolution in favor of it, causes serious damage to one's personal and professional sphere as "they provide a distorted external representation and not corresponding to truth with respect to [one's] person ";

not to play any public role, pleading the lack of a current interest of the community in knowing such information as a result of searches conducted with their own name;

HAVING REGARD to the note of 18 August 2021 with which the Authority asked the data controller to provide its observations in relation to what is represented in the introductory act and to communicate its possible intention to adhere to the requests of the complainant;

GIVEN the note of 16 September 2021 with which Google LLC detected:

not to be able to comply with the request for removal of the interested party since it is information published in the XX by newspapers of national importance that report the arrest of some people, including the complainant, "for the XX from XX";

the existence of a public interest in knowing news information relating to conduct of serious criminal relevance carried out by the interested party and of which "the outcome of the trial is not clear" as from the reading of the device of the sentence attached to the complaint proposed by the same “It is not possible to understand for which crimes (…) he would have been acquitted nor, even less, if the sentence refers to the events reported in the articles in question”;

the relevance of the information to the profession still carried out by the complainant and with respect to which there are undoubted profiles of public interest;

GIVEN the note of 24 September 2021 with which the interested party reiterated their requests, noting:

to have been sentenced in the first instance to four years of imprisonment in relation to "the crimes of XX of XX (...), of XX";

to have been acquitted in the appeal grade with reference to the contestation of the crime of XX of XX, specifying that, with regard to the other charges, the first instance sentence was annulled due to lack of jurisdiction of the Court of XX, which had pronounced in the merit, and the transmission of the documents was ordered to the Public Prosecutor at the Court of XX "who, to date, has not taken any action against the complainant";

that, therefore, the articles indicated in the complaint refer to past and no longer current events taking into account the fact that they only concern a precautionary measure ordered against them by the judge in the context of the investigations connected to XX of XX - measure revoked immediately after - and considering the acquittal intervened for all the charges relating to that XX;

that what is stated by Google in relation to the public importance of the profession carried out by the same is not a sufficient condition to deduce the existence of a collective interest in knowing the information contained in the contested articles since, in order to consider this correspondence, it is necessary that the facts narrated are in themselves relevant to public opinion;

in the case in question, the news for which removal is requested "are no longer current and not updated, therefore the passage of time, together with the outcome of the legal matter to which they refer, suggest" the prevalence of the invoked right to be forgotten;

CONSIDERING, preliminarily, that:

as a result of the activities carried out in Europe through its offices, the principle of establishment applies to Google LLC and therefore the related processing is subject to the provisions of the Regulation by virtue of the provisions of art. 3, par. 1;

the processing of personal data connected to the use of the Google search engine is however directly managed, also for the EU territory, by Google LLC, based in the United States;

this circumstance is suitable to found, pursuant to art. 55, par. 1, of the Regulation, the competence of the Italian Guarantor to decide the complaints proposed to it with reference to its national territory;

CONSIDERING that, unless the fact constitutes a more serious crime, whoever, in a proceeding before the Guarantor, falsely declares or certifies news or circumstances or produces false acts or documents, is liable pursuant to art. 168 of the Code "False statements to the Guarantor and interruption of the performance of the tasks or the exercise of the powers of the Guarantor";

CONSIDERED, with regard to the request for removal of the URLs indicated in the application filed against Google LLC, which, for the purpose of assessing the existence of the conditions for the recognition of the right to be forgotten pursuant to Articles 17, par. 1, lett. c), and 21, par. 1, of the Regulations, it is necessary to take into account, in addition to the element constituted by the passage of time, also the additional criteria expressly identified by the WP Art. 29 - Article 29 Group on the protection of personal data through the specific "Guidelines" adopted on 26 November 2014 following the aforementioned ruling of the Court of Justice of the European Union, as well as the most recent "Guidelines" no. 5/2019 adopted by the European Data Protection Board (EDPB) on 7 July 2020, containing the criteria for the application of the right to be forgotten by search engines in the light of the Regulation;

NOTING that:

the information contained in the contested articles concern some legal matters that involved the complainant and which, on the basis of what emerged during the proceedings, have not yet been fully defined;

the interested party in fact reported in general terms of an acquittal for the crimes charged to him, and in relation to which the precautionary measure of house arrest was originally ordered, only to later clarify, following the objections raised by the engine manager of research, that said acquittal would actually have occurred at the appeal stage at the end of 2020 with regard to one of the disputed charges - specifically that of competition in XX with regard to the XX of XX - while for the remainder the sentence the sentence pronounced against him by the judge of first instance would have been annulled due to the lack of jurisdiction of the Court that had pronounced it with subsequent transmission of the documents to the competent Public Prosecutor's Office;

the articles object of the complaint do not only concern the story relating to the XX of XX, a profile on which the defense of the complainant has focused in particular, but also to other disputes - such as that of XX regarding a loan of several million obtained from the XX for an educational project - with respect to which the judicial procedure is not yet concluded given that, as specified, the documents have recently been transmitted to the competent judicial authority;

the information considered as a whole, also by virtue of the connection with the professional activity still carried out by the interested party, are therefore responding to a public interest to be considered still current;

CONSIDERING, therefore, that the complaint must be considered unfounded;

HAVING REGARD to the documentation on file;

HAVING REGARD to the observations made by the Secretary General pursuant to art. 15 of the regulation of the Guarantor n. 1/2000;

SPEAKER Prof. Ginevra Cerrina Feroni;

WHEREAS, THE GUARANTOR

pursuant to art. 57, par. 1 letter f), of the Regulations, declares the complaint unfounded.

Pursuant to art. 78 of the Regulation, as well as art. 152 of the Code and 10 of the d. lg. 1 September 2011, n. 150, against this provision, opposition may be proposed to the ordinary judicial authority, with an appeal filed, alternatively, at the court of the place where the data controller resides or is based or at that of the place of residence of the interested party within the deadline of thirty days from the date of communication of the provision itself or sixty days if the applicant resides abroad.

Rome, 9 June 2022

PRESIDENT
Stanzione

THE RAPPORTEUR
Cerrina Feroni

THE SECRETARY GENERAL
Mattei

[doc. web n. 9789124]

Provision of 9 June 2022

Record of measures
n. 216 of 9 June 2022

THE GUARANTOR FOR THE PROTECTION OF PERSONAL DATA

IN today's meeting, which was attended by prof. Pasquale Stanzione, president, professor Ginevra Cerrina Feroni, vice president, dr. Agostino Ghiglia and the lawyer Guido Scorza, members, and the cons. Fabio Mattei, general secretary;

GIVEN the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (hereinafter, the "Regulation");

GIVEN the Code regarding the protection of personal data, containing provisions for the adaptation of the national system to Regulation (EU) 2016/679 (Legislative Decree 30 June 2003, n.196, as amended by Legislative Decree 10 August 2018, no. 101, hereinafter the "Code");

GIVEN the complaint submitted to the Guarantor, pursuant to art. 77 of the Regulation, on 27 July 2021 with which XX, represented by the lawyer XX, asked to order Google LLC to remove from the search results found in association with his name of some URLs linked to journalistic articles dating back to the XX and concerning a legal matter in which he was involved, which ended with his acquittal for non-existence of the fact;

CONSIDERING that the interested party has, in particular, noted:

that the contested article refers to a judicial measure with which the precautionary measure of house arrest was ordered "following the XX of the XX" for facts with respect to which he was subsequently acquitted with full formula for not having committed the done with a sentence that has become irrevocable;

the persistent availability of such information in association with one's name, in the light of the elapsed time and taking into account the subsequent judicial evolution in favor of it, causes serious damage to one's personal and professional sphere as "they provide a distorted external representation and not corresponding to truth with respect to [one's] person ";

not to play any public role, pleading the lack of a current interest of the community in knowing such information as a result of searches conducted with their own name;

HAVING REGARD to the note of 18 August 2021 with which the Authority asked the data controller to provide its observations in relation to what is represented in the introductory act and to communicate its possible intention to adhere to the requests of the complainant;

GIVEN the note of 16 September 2021 with which Google LLC detected:

not to be able to comply with the request for removal of the interested party since it is information published in the XX by newspapers of national importance that report the arrest of some people, including the complainant, "for the XX from XX";

the existence of a public interest in knowing news information relating to conduct of serious criminal relevance carried out by the interested party and of which "the outcome of the trial is not clear" as from the reading of the device of the sentence attached to the complaint proposed by the same “It is not possible to understand for which crimes (…) he would have been acquitted nor, even less, if the sentence refers to the events reported in the articles in question”;

the relevance of the information to the profession still carried out by the complainant and with respect to which there are undoubted profiles of public interest;

GIVEN the note of 24 September 2021 with which the interested party reiterated their requests, noting:

to have been sentenced in the first instance to four years of imprisonment in relation to "the crimes of XX of XX (...), of XX";

to have been acquitted in the appeal grade with reference to the contestation of the crime of XX of XX, specifying that, with regard to the other charges, the first instance sentence was annulled due to lack of jurisdiction of the Court of XX, which had pronounced in the merit, and the transmission of the documents was ordered to the Public Prosecutor at the Court of XX "who, to date, has not taken any action against the complainant";

that, therefore, the articles indicated in the complaint refer to past and no longer current events taking into account the fact that they only concern a precautionary measure ordered against them by the judge in the context of the investigations connected to XX of XX - measure revoked immediately after - and considering the acquittal intervened for all the charges relating to that XX;

that what is stated by Google in relation to the public importance of the profession carried out by the same is not a sufficient condition to deduce the existence of a collective interest in knowing the information contained in the contested articles since, in order to consider this correspondence, it is necessary that the facts narrated are in themselves relevant to public opinion;

in the case in question, the news for which removal is requested "are no longer current and not updated, therefore the passage of time, together with the outcome of the legal matter to which they refer, suggest" the prevalence of the invoked right to be forgotten;

CONSIDERING, preliminarily, that:

as a result of the activities carried out in Europe through its offices, the principle of establishment applies to Google LLC and therefore the related processing is subject to the provisions of the Regulation by virtue of the provisions of art. 3, par. 1;

the processing of personal data connected to the use of the Google search engine is however directly managed, also for the EU territory, by Google LLC, based in the United States;

this circumstance is suitable to found, pursuant to art. 55, par. 1, of the Regulation, the competence of the Italian Guarantor to decide the complaints proposed to it with reference to its national territory;

CONSIDERING that, unless the fact constitutes a more serious crime, whoever, in a proceeding before the Guarantor, falsely declares or certifies news or circumstances or produces false acts or documents, is liable pursuant to art. 168 of the Code "False statements to the Guarantor and interruption of the performance of the tasks or the exercise of the powers of the Guarantor";

CONSIDERED, with regard to the request for removal of the URLs indicated in the application filed against Google LLC, which, for the purpose of assessing the existence of the conditions for the recognition of the right to be forgotten pursuant to Articles 17, par. 1, lett. c), and 21, par. 1, of the Regulations, it is necessary to take into account, in addition to the element constituted by the passage of time, also the additional criteria expressly identified by the WP Art. 29 - Article 29 Group on the protection of personal data through the specific "Guidelines" adopted on 26 November 2014 following the aforementioned ruling of the Court of Justice of the European Union, as well as the most recent "Guidelines" no. 5/2019 adopted by the European Data Protection Board (EDPB) on 7 July 2020, containing the criteria for the application of the right to be forgotten by search engines in the light of the Regulation;

NOTING that:

the information contained in the contested articles concern some legal matters that involved the complainant and which, on the basis of what emerged during the proceedings, have not yet been fully defined;

the interested party in fact reported in general terms of an acquittal for the crimes charged to him, and in relation to which the precautionary measure of house arrest was originally ordered, only to later clarify, following the objections raised by the engine manager of research, that said acquittal would actually have occurred at the appeal stage at the end of 2020 with regard to one of the disputed charges - specifically that of competition in XX with regard to the XX of XX - while for the remainder the sentence the sentence pronounced against him by the judge of first instance would have been annulled due to the lack of jurisdiction of the Court that had pronounced it with subsequent transmission of the documents to the competent Public Prosecutor's Office;

the articles object of the complaint do not only concern the story relating to the XX of XX, a profile on which the defense of the complainant has focused in particular, but also to other disputes - such as that of XX regarding a loan of several million obtained from the XX for an educational project - with respect to which the judicial procedure is not yet concluded given that, as specified, the documents have recently been transmitted to the competent judicial authority;

the information considered as a whole, also by virtue of the connection with the professional activity still carried out by the interested party, are therefore responding to a public interest to be considered still current;

CONSIDERING, therefore, that the complaint must be considered unfounded;

HAVING REGARD to the documentation on file;

HAVING REGARD to the observations made by the Secretary General pursuant to art. 15 of the regulation of the Guarantor n. 1/2000;

SPEAKER Prof. Ginevra Cerrina Feroni;

WHEREAS, THE GUARANTOR

pursuant to art. 57, par. 1 letter f), of the Regulations, declares the complaint unfounded.

Pursuant to art. 78 of the Regulation, as well as art. 152 of the Code and 10 of the d. lg. 1 September 2011, n. 150, against this provision, opposition may be proposed to the ordinary judicial authority, with an appeal filed, alternatively, at the court of the place where the data controller resides or is based or at that of the place of residence of the interested party within the deadline of thirty days from the date of communication of the provision itself or sixty days if the applicant resides abroad.

Rome, 9 June 2022

PRESIDENT
Stanzione

THE RAPPORTEUR
Cerrina Feroni

THE SECRETARY GENERAL
Mattei