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RGPD: the right to be forgotten and the obligation to limit the dissemination of defamatory content

Published on : 17/05/2024 17 May May 05 2024
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The Italian Supreme Court of Cassation, in Order No. 9068/2024 of April 5, 2024, upheld the liability of a private television production company, which had published a video report deemed defamatory, for failing to adopt adequate measures to limit the damage caused by the distribution of the content.

The case originated in a TV program broadcast in 2014 in which the TV station told the story of a woman, an employee of a healthcare facility, who had to undergo heart surgery in 2011 at the facility where she was employed. During the operation, a three-centimeter screw had been left in the patient's body, and she had to undergo further surgery at another hospital. Having reported the incident to the legal authorities, the patient/employee was dismissed by the clinic. Reinstated following legal proceedings, she was again dismissed for reasons of union reorganization.

The TV station was then sued by the clinic mentioned in the TV report. It was ordered by the Catania Court to pay compensation for non-material damage and to remove, at its own expense, from the YouTube channel and the most important search engines, all videos and news items reproducing the television report.

The TV channel challenged the basis of the decisions on the merits (Article 17 RGPD: right to deletion of data) arguing that the facts predated the entry into force of the RGPD.

But the Court considered that the principle of the "right to be forgotten" was already amply present in the case law of the Court of Justice (judgment of May 13, 2014, Case C-131/12, Google v. Spain) and in Articles 7 and 8 of the ECHR.

Consequently, the channel was held liable in that it should have taken action to request the removal or restriction of access to the defamatory content, by actively cooperating with the hosts of the sites that had ensured its dissemination (YouTube in particular).

It thus established the principle that the person responsible for defamatory content must demonstrate that he or she has taken all possible steps to inform and persuade third parties of the defamatory and damaging nature of the publication.
 
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