The Court of Appeal has recently faced an issue particularly difficult, by declining the useless principles in order to balance the right to be forgotten with this of the news. The decision borns from a pretty common story: a subject which have settled an eight-months sentence for scams in public furniture (medical devices) apply to the Judicial Authority by suing the online news organization based on the network persistence of the relative news.

The court found that the aim of the journalistic reporting had been exhausted with the sentence of plea deal, also lacking any new elements that could attribute current events to the news, and condemned the editor of the online newspaper to the deletion of the news. He told the Supreme Court that he first retraced the judicial history of the emergence of the right to privacy, from the dry refusal expressed in the 1950s, to the constitutional openings up to the protection of the last decades.

It also resumed the ranks of the so-called right to be forgotten, which gradually borns like the right to be forgotten gradually transformed into “the right to exclude the interference of an extraneous knowledge and publicity of the sphere of the intimacy of the person”, then becoming protection “of the modes and techniques of acquiring the news”. Characterized by the “diachronically read time factor”, it thus differs from the right to privacy:

“It is not intended to preclude the disclosure of news and facts belonging to the intimate sphere of the person and kept until then confidential, but to prevent that facts, already legitimately published, and therefore subtracted from secrecy, can be recalled in the relevance of the elapsed time […] the fact, completely acquired by the community, after losing the public connotation, in the intervening course of time, with the transcoloring of interest in his knowledge becomes private and, where repurposed, opens the space to the recognition of the right to be forgotten”.

This is the case, the Court (Cass. May 19, 2020 9147) comes to two conclusions.

First, it gives the journalistic archives constitutional cover and therefore concludes that they are intangible, except for the discrimination of the truth of the fact. Indeed, the Court states that the purpose of documentary filing is a purpose compatible with the first purpose of processing the data (news) and, moreover, that this purpose can be understood as a ‘decline of the right to information’. It is not worth anything, however, to exadrop the digital character of the newspaper: to impose the deletion of the news from the digital archive would be equivalent to “tearing a page of an old issue of a newspaper kept in the paper archive”.

As a second landing, in accepting part of the appeal, the Supreme Court requires that the referring judge examine, in this case, whether the time elapsed since the conviction could be considered sufficient to accrue the right to be forgotten and again, with the view of a balance between the constitutional values at stake, whether there were still persistent and persistent rights of judicial chronicles or filing for the news.

Only after this propedeuthical and essential assessments, the National Court will assess the application of the deindexation measure (and not the deletion) of the news like a protection measure of the right to be forgotten.

SOURCE: FEDERPRIVACY