The right to be forgotten

Intermediary liability also extends to a concept known as ‘the right to be forgotten,’ which supporters argue creates an obligation on internet intermediaries to delete certain content at the request of a person who is the subject of such content. At present, the issue is being considered in multiple jurisdictions as the appropriate balance is sought between protecting the right to privacy and dignity and the right to access information of public importance. For example:

• The Supreme Court of Argentina in 2022 rejected a petition by an anchor-women to have Google de-index embarrassing content from her past, as it considered this to be an extreme measure that would restrict the flow of public interest information. It held that the mere passing of time did not render the information irrelevant.(1)

• The Italian Supreme Court held in 2019 that a newspaper had violated the right to be forgotten of a man who had been convicted of murder 27 years before by publishing an article about it and enabling his identification. It held that any re-evocation of the past without a connection to current events must be done in such a way that anonymizes the person involved when they do not play a relevant public role.(2)

• The ECtHR in 2021 confirmed a district Italian Court’s decision that a publisher’s decision not to remove and de-index an online article when requested to do so, given the facts at hand, constituted a violation of the requestor’s right to reputation. In this matter, the article in question described a fight in a restaurant and the criminal proceedings that ensued. The editor failed to remove and de-index the article upon request from the subject of the article. The ECtHR held that the district court’s decision did not violate the publisher’s right to freedom of expression, and upheld the damages that had been awarded against the editor.(3)

• Similarly, the ECtHR held in 2023 that an order to anonymise an article in a newspaper’s electronic archive did not breach the publisher’s right to freedom of expression. The article referred to a person’s involvement in a fatal traffic accident for which they were subsequently convicted. The ECtHR upheld the Belgium court’s decision, and emphasised that a person who is not a public figure may acquire notoriety though a criminal act. However, that this may declare as time goes on and, consequently, they may be able to rely on the right to be forgotten in order to go back to someone who is unknown to the public.(4)