Diritto dei Prodotti Digitali | IT Law

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COMUNICAZIONE DIGITALE | Università degli Studi di Milano

European Court of Justice: privacy, diritto all’oblio e “right to be forgotten”

An internet search engine operator is responsible for the processing that it carries out of personal data which appear on web pages published by third parties. Thus, if, following a search made on the basis of a person’s name, the list of results displays a link to a web page which contains information on the person in question, that data subject may approach the operator directly and, where the operator does not grant his request, bring the matter before the competent authorities in order to obtain, under certain conditions, the removal of that link from the list of results. Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data has the objective of protecting the fundamental rights and freedoms of natural persons (in particular the right to privacy) when personal data are processed, while removing obstacles to the free flow of such data. The Court of Justice finds, first of all, that by searching automatically, constantly and systematically for information published on the internet, the operator of a search engine ‘collects’ data within the meaning of the directive. The Court further holds that the operator of the search engine is the ‘controller’ in respect of that processing, within the meaning of the directive, given that it is the operator which determines the purposes and means of the processing. So far as concerns, next, the extent of the responsibility of the operator of the search engine, the Court holds that the operator is, in certain circumstances, obliged to remove links to web pages that are published by third parties and contain information relating to a person from the list of results displayed following a search made on the basis of that person’s name. The Court makes it clear that such an obligation may also exist in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful. The Court points out in this context that processing of personal data carried out by such an operator enables any internet user, when he makes a search on the basis of an individual’s name, to obtain, through the list of results, a structured overview of the information relating to that individual on the internet. The Court observes, furthermore, that this information potentially concerns a vast number of aspects of his private life and that, without the search engine, the information could not have been interconnected or could have been only with great difficulty. However, inasmuch as the removal of links from the list of results could, depending on the information at issue, have effects upon the legitimate interest of internet users potentially interested in having access to that information, the Court holds that a fair balance should be sought in particular between that interest and the data subject’s fundamental rights, in particular the right to privacy and the right to protection of personal data. The Court observes in this regard that, whilst it is true that the data subject’s rights also override, as a general rule, that interest of internet users, this balance may however depend, in specific cases, on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life. Finally, in response to the question whether the directive enables the data subject to request that links to web pages be removed from such a list of results on the grounds that he wishes the information appearing on those pages relating to him personally to be ‘forgotten’ after a certain time, the Court holds that, if it is found, following a request by the data subject, that the inclusion of those links in the list is, at this point in time, incompatible with the directive, the links and information in the list of results must be erased. Read the full judgment  eng | ita

Twitter: la giurisprudenza nordamericana ancora divisa tra tutela della reputazione altrui e libertà d’espressione in rete

A federal judge ruled that prosecuting a man for writing harassing tweets directed at a prominent Buddhist religious leader violated the tweeter’s First Amendment rights. The target of the harassment, Alyce Zeoli, is “an enthroned tulku or reincarnate master who was enthroned in 1988 as a reincarnate llama.” The defendant, William Cassidy, became involved with Zeoli and her religious sect in 2007, but they eventually had a falling-out. Cassidy evidently became embittered, and in 2010 he began a campaign of harassment against Zeoli on Twitter and on a blog hosted by Blogspot. The tweets ranged from the merely vulgar to arguably threatening. The federal government found the messages sufficiently disturbing to indict Cassidy for violating a 2006 anti-stalking law that prohibits the use of an “interactive computer service” to cause “substantial emotional distress.” The government claimed that Zeoli “feared for her safety,” and “has not left her house for a year and a half, except to see her psychiatrist.” Cassidy argued his prosecution violated the First Amendment. And in a last ruling, Judge Roger W. Titus agreed.

Twitter, nuovo caso di diffamazione online

The High Court in Cardiff heard the Twitter libel case between two councillors.

A councillor is to pay £3,000 and costs to a political rival for posting a libellous comment on Twitter. Caerphilly county councillor Colin Elsbury had claimed that Eddie Talbot had been removed from a polling station by police during a by-election in 2009. Town councillor Mr Talbot said the untrue claim left him open to ridicule.

Mr Elsbury agreed to pay compensation and legal costs and to publish an apology via Twitter, the High Court in Cardiff heard.

Mr Talbot was a Caerphilly town councillor seeking election to the county council as an independent in the by-election held in Caerphilly’s St Martin’s ward in June 2009. Mr Elsbury, the Plaid Cymru candidate and eventual winner, wrote on his Twitter page on the day of the poll: “It’s not in our nature to deride our opponents however Eddie Talbot had to be removed by the Police from a polling station.”

Mr Talbot’s solicitor Nigel Jones told the court that the implication of the Twitter statement was that his client had been forcibly removed for criminal or disreputable conduct, adding that the allegation was completely untrue and defamatory. The man targeted by the tweet – who came second in the closely-fought six way by-election – says the statement left him open to ridicule.

The High Court heard that Mr Elsbury had agreed to pay Mr Talbot £3,000 in compensation, to publish an apology on his Twitter site, and pay legal costs, understood to be substantial.

Guitar Hero: No Doubt v Activision Publishing (Cal. Ct. App., 2d Dist. Feb. 15, 2011)

The California 2nd District Court of Appeal said Activision’s use of computer-generated recreations of No Doubt’s members in the video game Band Hero was not a “transformative use” within the protection of the First Amendment.

No Doubt members had posed for motion-capture photography to enable Activision to reproduce their likenesses with precision, and Activision intentionally used literal reproductions of the band members so that players could choose to “be” them by selecting them as their avatars in the game.  The avatars’ only activity in the game was performing rock songs, the same activity by which No Doubt achieved and maintained its fame.

Although No Doubt had signed a licensing agreement for its members to appear in the game, the band said Activision exceeded the scope of the agreement in allowing players to use their avatars to perform songs by other musicians, the opinion says.  This allowed players to make female lead singer Gwen Stefani’s avatar sing in a male voice.

No Doubt sued Activision for fraudulent inducement, violation of statutory and common law right of publicity, breach of contract, unfair business practices under Unfair Competition Law , injunctive relief and rescission. Activision moved to strike complaint as a strategic lawsuit against public participation, but the trial court denied the motion.

Affirming, the appeals court said the band’s challenge to the use of the likenesses arose from First Amendment rights, but that the likenesses did not comprise a “transformative use,” and the First Amendment did not require No Doubt to prove that video game was “explicitly misleading” to support the UCL claim.

No Doubt v. Activision Publishing Inc., 2011 WL 507479 (Cal. Ct. App., 2d Dist. Feb. 15, 2011)