- Factual background
In 2022, a distinguished lawyer and scientific director of an online university was under criminal investigation, which was subsequently dismissed by the Court of Bari. Following that dismissal, he requested Google, pursuant to Article 17 GDPR, to de-index news items relating to him; the request was granted only in part. Following the entry into force of Article 64-ter of the implementing provisions of the Code of Criminal Procedure under the Cartabia Reform, the applicant submitted a renewed request for de-indexing based on the annotation appended to the dismissal order, which the search engine provider refused to comply, invoking the prevailing public interest in access to the information.
The data subject challenged the refusal before the Italian Data Protection Authority and, subsequently, before the Court of Naples. Both the Authority and the court of first instance dismissed the claims following a balancing between the right to be forgotten and the right to be informed, holding that the latter prevailed in light of the public interest in the accessibility of the information, its ongoing relevance, and its journalistic nature. The applicant subsequently lodged an appeal on points of law, which the Supreme Court dismissed by order no. 34217 of 26 December 2025.
- The Interpretation of the Italian Supreme Court
In the order under consideration, the Supreme Court addressed the issue of balancing freedom of expression with the right to de-indexing, in light of Article 64-ter of the implementing provisions of the Code of Criminal Procedure, read in conjunction with Article 17 GDPR. The Court clarified, in particular, that the annotation entered by the court registry on a dismissal order, or on a judgment of acquittal or of no case to answer, does not automatically give rise to an obligation on the part of the search engine provider to de-index content relating to the criminal proceedings.
The main interpretative issue examined in the order concerned, first, the legal nature of such annotation and, secondarily, whether it could automatically impose on search engine providers the de-indexing of information and data relating to the criminal proceedings, by way of derogation from the principle that the right to be forgotten may be recognised only following a case-by-case balancing exercise, conducted in light of the specific circumstances of the case.
The Supreme Court construed the annotation as giving rise merely to a rebuttable presumption as to the well-foundedness of the de-indexing request addressed to search engine. As such, it neither predetermines a favourable outcome of the request nor dispenses with the need for a case-by-case balancing. Rather, the search engine provider retains its evaluative power and a margin of discretion in assessing the request.
This approach appears consistent, on the one hand, with the procedural nature of Article 64-ter of the implementing provisions of the Code of Criminal Procedure, which does not introduce an autonomous «national right to be forgotten». Accordingly, the general applicable framework remains, even in such cases, that laid down in Article 17 GDPR. On the other hand, Article 64-ter(3) of the implementing provisions of the Code of Criminal Procedure expressly allows de-indexing only «pursuant to and within the limits of Article 17 GDPR», thereby incorporating a safeguard clause preserving the derogations provided for in Article 17(3) GDPR to the exercise of the right to erasure. These include, inter alia, the need to ensure the full exercise of freedom of expression and information, having regard to the temporal dimension, the public relevance of the information, as well as its timeliness and accuracy, in addition to the role played by the data subject in public life.
In conclusion, balancing therefore remains a fundamental and indispensable step in recognising the right to be forgotten as prevailing over the rights to freedom of expression, even where the data subject has been involved in criminal proceedings concluded by a judgment of acquittal or of no case to answer, or by a dismissal order.
