13 Dec No violation of freedom of expression in a case against newspaper editor due to failure to exercise an individual’s right to be forgotten

In the case of Biancardi v. Italy (application no. 77419/16, 25.11.2021) the European Court of Human Rights held, unanimously, that there had been no violation of Article 10 (freedom of expression) of the European Convention on Human Rights.

The case concerned the “right to be forgotten”. The applicant, a former editor-in-chief of an online newspaper, was found liable in civil proceedings for having kept on his newspaper’s website an article reporting on a fight in a restaurant, giving details on the related criminal proceedings. The courts noted in particular that the applicant had failed to de-index the tags to the article, meaning that anyone could type into a search engine the name of the restaurant or its owner and have access to sensitive information on the criminal proceedings, despite the owner’s request to have the article removed. 

The Court pointed out that requiring the applicant to permanently remove the article had not been at issue in the domestic courts. The crux of the case was the applicant’s failure to de-index the information concerning the restaurant owner and his decision to keep the article easily accessible. Nor had any intervention regarding the anonymisation of the online article been at issue in the case. From that starting point, the Court went on to note that the article had remained online and easily accessible for eight months, despite the claimant’s request to remove it. Furthermore, under the applicable domestic law, the applicant’s right to disseminate information decreased over time, whereas the claimant’s right to respect for his reputation increased. Moreover, the information published, relating to criminal proceedings against a private individual, had been sensitive. Therefore, the applicant’s right to impart information under the Convention had not therefore been breached, and all the more so given that he had not actually been required to remove the article from the Internet.

Lastly, the Court did not consider that the severity of the sanction – civil not criminal liability – and the amount of compensation awarded had been excessive. 

It therefore concluded that the domestic jurisdictions findings had constituted a justifiable restriction on the applicant’s freedom of expression – all the more so given the fact that he had not been obliged to permanently remove the article from the Internet. Accordingly, there had been no violation of Article 10.

This was the first case in which the Court had examined whether a journalist’s civil liability for not de-indexing information published on the Internet had been compatible with Article 10 of the Convention.

Reference from the official website of the European Court of Human Rights