On Focus

Author: Stefano La Rosa

Personal Data Protection

A review is mightier than a sword: the right to be forgotten in the information society

Nowadays, people are more and more concerned about the image they project online. This is an attitude that is not solely inspired by a newly-rediscovered hedonism, rather by a pragmatic conclusion: clicks, views, reviews and feedbacks translate into actual proceeds and not just for millennials and influencers, but also for companies, professionals, entrepreneurs. There is only a wrinkle: while positive interactions mean money, conversely negative comments or reviews can lead to wrack and ruin.

A recent decision issued by the Court of Rome deals precisely with this topic: a plastic surgeon in fact sued Google as it did not comply with his request to delete his My Business profile or at least certain negative comments posted there by alleged patients of his. The plaintiff based his allegations on the fact that Google by refusing to comply would have violated his “right to be forgotten”, in other words, the right not to be harassed or stigmatized for something that happened in the past. Indeed, the right to be forgotten is deemed a fundamental right also under the Italian Constitution. The Court of Rome though ruled in favour of the tech giant indirectly acknowledging the existence of a sort of review-based trust that is worth protection under the Constitution (i.e. freedom of speech). Indeed, as it happens when two constitutionally-relevant rights conflict with one another, the judge decided which one is to prevail based on an overall assessment of the interests at stake. In this case, the Court opted for safeguarding the interests of community over that of an individual because that very individual was acting in his capacity as owner of business, a business that any (in this case) patient is legitimately entitled to rate to the benefit of other prospective patients.

This decision sets a precedent which, if confirmed in appeal or reaffirmed by other case-law, might have consequences in particular on reputation management companies whose business is indeed based on the possibility to remove content detrimental to the interests of the companies they represent.

Another consequence will regard the possible mischievous use of this “tool” by people whose interest conflicts with that of the business they are reviewing. On this, while reviews purposely written up for the sole purpose of crippling competitors may be addressed resorting to the rules on fair competition, it will be necessary to deal also with those comments written up by (let us call them) “haters”, who did not even use the service they are rating. So far, this is something that have been addressed by the T&C of each service/website, but it is eventually a problem which will be also up to the lawyers and technicians to untangle.