We present here an interview published in december 2015 on the CINECA Consortium Magazine.
Do the legal principles covering the Net derive from general legal principles of from made-to-measure laws?
The general legal principles are always the same, of course. There would be no sense in trying to find a made-to-measure solution and a made-to-measure law for each specific problem, without due consideration for the overlying framework. It’s not always true, therefore, that, in order to regulate new technologies, new laws have to be made.
We need to get away, too, from the common idea that technology runs ahead while the law limps along behind. The reality is quite different. Take the laws on electronic signatures, for example. In Italy, the law arrived ahead of technology and even ahead of the need.
The principle has recently been affirmed according to which the law should be technologically neutral. On the basis of this principle, the legislator should not condition the market by favouring one technology over another, nor should he condition the development of technology. This approach is “functional” in the sense that it regulates, not the object, but the function. We must avoid constraining any specific form of technological or commercial development. Rather, we need to set out general principles that will remain unvaried for a certain period of time, and will not be constrained by changing technologies.
Apart from the electronic signature, another emblematic case is that of laws for the protection of consumers over remote sales contracts. What is involved, clearly, is a way of selling, not a specific technology. As far as the law is concerned, therefore, it is not important to make a distinction between purchases made using, for example, an App, or those made through a traditional website.
Speaking of users’ rights, the privacy and copyright laws are well known, but people are also invoking the right to be forgotten. What is this about?
The right to be forgotten is not a right in itself but it is nevertheless a restatement of other rights that are recognized by the law. Traditionally, the right to be forgotten describes a person’s right not to have republished information, even if it was legitimately published at the time, relating to events that happened a considerable length of time ago.
In Internet, obviously, the time involved is not that between publication and republication of the information, but the time that has lapsed since the item was published. The time factor regards, not just news items, but events which took place a long time ago, though for which this fact is not evident because no time context is given. In these cases, jurisprudence has suggested there may be an infringement of an individual’s right to his or her personal identity.
The problem is to ensure that the proper weight is given to the information, in order to avoid the person’s identity being distorted by the Net. As we saw from a decision by the Supreme Court, no. 5525 of 5 April 2012, this goal can be achieved by placing the information in context. It is not a right to be forgotten, then, but a right to a proper context.
The underlying theme, but one that emerges strongly, is that of the protection of an individual’s identity, in all its multiple forms.
What is at issue, then, is not the question of a specific news item about a specific individual and a specific event that can be retrieved through Google, but the protection of a person’s identity in the Internet, which is often perceived as a sole archive. It is not a sole archive, but it is a major source of information and sometimes the only one accessible.
“The Law in the Net”, but also “The Net in the Law”: how has Internet affected or modified the principles of “Jus Commune”?
Generally speaking, the principles of “Jus Commune” remain as before, but it cannot be denied that the advent of new technologies has brought fresh challenges for legal scholars.
What we have said about the right to be forgotten is a good example. In the real, physical world, the key element of this is the concept of “republication”. With Internet, on the other hand, the issue is the time the information stays available. Here it is not a question of drawing public attention back to a past event. The point is that, potentially, the past event has always remained there. So in this case the need that the law has to satisfy is a different one. It is no longer a question of republishing or not, it is a question of how a publication, that was maybe made quite legitimately many years earlier, is to be presented now.
A Net without borders: how have international regulations been affected by Internet?
The same general considerations apply. It is clear that the advent of Internet has drawn international attention to the need to regulate certain situations. I am thinking first of all of regulations aimed at encouraging the use of Internet as a trading tool and, as a consequence, the regulations set up for the protection of consumers.
A separate chapter belongs to the international conventions created to facilitate cooperation between the forces of law and order in relation to crimes committed via computer systems. I am thinking, for example, of the Budapest Convention of the European Council of 23 November 2001 on cybercrime.
Which judge has jurisdiction over disputes in Internet?
It depends on the nature of the dispute. The same procedural rules apply as in the real, physical world. The problem with internet is that the proper jurisdiction is not always easy to identify.
You are a teacher at Bologna University. How, in your opinion, has Internet revolutionized the world of the university? Is it simply a question of having new tools available for the administration and for the students, or is there more to it than that? Has there been a change of mentality, for example?
There are pros and cons to using Internet, in the university world like any other. Clearly, immediate access to a wider range of information has speeded up research processes. There is wider access to study texts. But it has to be said that the information stored on the Internet is disorderly. All the information on the net appears at the same level. From an academic point of view, research via the Internet poses problems for students, who are not always able to assess the reliability of the sources they are consulting. Consultation of texts in the library, on the other hand, allows more control over the information. It makes it easier to distinguish between original and secondary sources.
Turning now to the changes that Internet has brought to administrative aspects, we have to remember that publicity, that is to say the means of spreading awareness of information, is not the same on and off the net. On the Internet, anyone can access it without limits, unless restrictions to access have been expressly placed – reserved areas, passwords and so on. There are also no temporal limits. So publication online and publication offline are, legally, two very different things. Bologna University has adopted an innovative regulation on the publication of its official acts. The time of publication is limited to three years, and the regulations also cover the means of access and the essential nature of the content that is to be published. Transparency doesn’t mean publishing everything on Internet. Let’s remember that it’s a storehouse, not a structured archive of knowledge.
You were among the first in Italy to deal with these questions. Today you are a leading international expert, with major appointments and awards. What attracted you in the first place, and how would you sum up this experience today?
I must say that, from my professional viewpoint, I always prefer not to draw up a balance of what has been done. I prefer to look ahead to the things I still have to do. I always hope to make further improvements. I can certainly say that I am satisfied with having chosen to study a branch of law that is a continual source of new stimuli.
In the first place, I was pushed by curiosity for a new aspect of law. I was also fired by a passion for technical innovation. I therefore discovered, in my specialized field, a fascinating aspect of the legal profession: creativity in law. I believe, therefore, that I have been very lucky, not least because I have always found motivation and interest for my work. Nevertheless, however satisfied I may be, I am very much aware that a lot of new challenges lie ahead.
On October 14th, 2014 The Internet Rights Charter prepared by the Study Committee promoted by the President of the Italian Chamber of Deputies Laura Boldrini and led by the jurist Stefano Rodotà, was presented to Montecitorio.
The document aims to promote the citizens’ rights online and to defend them against possible government and market impositions.
The Internet Rights Charter comprises fourteen articles based on the rights of digital citizenship, from the right to privacy to the right of access to education and from the right to be forgotten to the neutrality of the net.
In particular, with regard to the last point, which is currently the subject of much debate, the Internet Rights Charter declares its position by specifying that “the right of access to the web must be on an equal footing, with procedures which are both technologically appropriate and updated and capable of eliminating all obstacles of an economic and social nature.” As is well known, the aim of the principle of neutrality of the net is to prevent telecommunications oligopolies from creating fast tracks for chargeable services and governments from preventing gaining access to information.
The document was submitted by the Committee in draft form and will be the subject of a public consultation open to comments and proposals from the public as from October 27th. To examine the 14 articles and for further information on the consultation, please go to the relevant page on the website of the Italian Chamber of Deputies.
News items stored in newspapers’ historical online archives are to be considered incomplete in that they do not report additional developments of the facts, and therefore must be updated. Thus, with this motivation, the Italian Supreme Court imposes the obligation for publishers to update their online news archives.
In judgment no. 5525 of the Third Civil Division, the Italian Supreme Court has ruled that online newspapers will in future be under the obligation to equip their archives with “an appropriate system designed to provide information (in the body of the text or in the margin) on whether there exists a follow-up or any development to news items and if so what the content is[...] allowing users swift and easy access to the updated information”.
The case before the Court concerns the news about the criminal involvement of a politician from Lombardy in the north of Italy. The man had been arrested in 1993 on charges of corruption, but was subsequently acquitted. The news of his arrest, however, still appears among search engine results because of one article in the online news archive of the Italian newspaper “Corriere della Sera”.
The man had appealed firstly to the Italian Data Protection Commissioner and subsequently to the Court of Milan requesting the removal of the judicial data relating to him and complaining of the lack of any update to the archived news item reporting on the favorable outcome to the issue. As an alternative he asked for an update linked to the news item or the transfer of the item itself to a part of the site not indexed by search engines. However, neither the Commissioner nor the Court accepted his requests.
The Italian Supreme Court, however, has accepted the claimant’s grounds.
While establishing that in any case there were no grounds for libel as the events described in the article were true at the time of its publication, the Court acknowledged the incompleteness of the information in the light of the subsequent events.
In an attempt to balance the requirements of public interest, guaranteed by the freedom of the press, with the interests of the individual, protected by the right to privacy and the right to oblivion, the Court thus ruled that the archived articles must be accompanied by their relative updates.
In this way the decision aims to safeguard not only the right of the person involved in the events to protect their own personal and moral identity, but also the right of users to receive accurate and complete information. The judgment of the Supreme Court, therefore, attaches a new value to the right to oblivion (the right to be forgotten) within the very principles of the freedom of the press itself.
The Italian Supreme Court did not, however, attribute any responsibility to search engines, which in the judgment were defined as “mere intermediaries.”
The right to oblivion on the Internet is again at the centre of the international debate.
This time attention is focused on Spain where at the beginning of the year the Agencia Española de Protección de Datos (AEPD) ordered Google to remove certain links to pages hosting personal information regarding Spanish citizens from its results.
These are a certain number of pages, most of which are newspaper articles, containing news which can be interpreted as damaging for the reputations of the subjects involved. One particular case stands out: that of Doctor Hugo Guidotti Russo, a plastic surgeon who in 1991 was involved in a case of medical malpractice and who is now asking Google to remove the related articles from search results connected with his name.
However, the Spanish Authority’s decision met with a stance of non-collaboration on the part of the Mountain View Company which announced that it had no intention of carrying out what it considers censorship of its results.
In January the controversy between Google and the Spanish Authority ended up in a Madrid Court, where both parties asked the judge to find in favour of the protection of important rights: the Authority asked for the protection of the right to privacy and the right to oblivion whereas Google asked for the protection of the right to inform and freedom of speech.
As reported in the Wall Street Journal, during the trial a lawyer representing Google stated that Spain is the only country where a company is obliged to remove links to Web pages even if these do not contain illegal content of any description.
The Spanish Authority replied that the only way to block access to content is through search engines. This is because newspapers online have the right to refuse to remove legally published news from their archives.
Several weeks later the Madrid Court asked the European Court of Justice for its opinion on the matter. This Court will now have to establish whether the Spanish Authority’s requests are compatible with Community legislation.
The European Court’s decision is awaited with growing interest both in Europe and in the US in that it may establish a decisive precedent for the future of the availability of archive information on the Internet.
This issue is particularly relevant as an overhaul of the EU’s 15-year-old data-protection law is awaited within the next year or two. Currently the main topic of the European debate is conciliation between freedom of speech and the right to privacy.
In November during a conference in Brussels Viviane Reding, the European Commissioner for Justice, stated:
“As somebody once said: “God forgives and forgets but the Web never does!” This is why the “right to be forgotten” is so important for me. With more and more private data floating around the Web – especially on social networking sites – people should have the right to have their data completely removed.”
However, not all data is equal. It should be possible to distinguish between information voluntarily put on a social network site and information published in newspaper articles of global interest, such as those regarding murders. This is what Google’s Global Privacy Counsel Peter Fleischer declares in a post published on his personal blog where he asks for greater clarity regarding the uniquely European concept of the right to oblivion.
Peter Fleischer, who was last year sentenced to six months’ imprisonment by the Milan Court in the Vividown vs. Google case, wonders how a national law could successfully issue orders to remove links that are used globally to search for information.
Fleischer uses the precise case of Google/Vividown as a reference for a reflection that has also been reported by the American press:
“The web is littered with references to my criminal conviction in Italy, but I respect the right of journalists and others to write about it, with no illusion that I should have a “right” to delete all references to it at some point in the future. But all of my empathy for wanting to let people edit-out some of the bad things of their past doesn’t change my conviction that history should be remembered, not forgotten, even if it’s painful. Culture is memory.”
Clearly the debate is still open. For a broader in depth analysis of the various points of view we suggest you should read the relevant pages from The Guardian, El Paìs, The Wall Street Journal and Forbes Magazine.