Diritto & Internet

Probative force of the SMS and the right to be forgotten: new rulings from the Italian Court of Cassation

Two recent decisions by the Italian Court of Cassation address issues, which I had already commented on several times, and which confirm the guidelines we have suggested about the probative force of an electronic document and the right to be forgotten.

1) Civil Court of Cassation, 17th July 2019, no. 19155

The probative force of the Short-Message-Service (“SMS”) has been confirmed.

An SMS is an electronic document which contains a representation of legally relevant acts, facts or data and is ascribable to Art. 2712 of the Italian Civil Code.

Hence, it gives evidence of the facts and things reproduced in it if the person it is presented against does not dispute their correspondence to the facts or the things reproduced. However, as the Court specifies, refusal to acknowledge must be clear, specific and explicit and must consist in attaching elements which demonstrate the discrepancy between real facts and reproduced facts.

This specific case concerned certain SMSs in which a father undertook to cover half the cost of nursery school fees, and which were belatedly and broadly contested.

With this ruling, then, the Court of Cassation confirms the consolidated case-law which it had already clearly expressed in its landmark decision no. 11445/2001 (Autostrade per l’Italia S.p.A.), which we have frequently commented on and shared.


2) Court of Cassation, Joint Sections, 22nd July 2019, no. 19681

In a Joint Sections judgement the Court of Cassation deals with the right to be forgotten.

The Court affirms that the right to privacy (which is expressed by the right to be forgotten) takes precedence over the right to bring back the memory of past events which might harm the dignity and honour of those involved, and which have long since been forgotten (this was a case of murder from 27 years previously, for which the offender had already served the prison sentence and which has been reported again with the publication of the offender’s name).

The judge’s decision must be deliberated on a case-by-case basis and, as the Supreme Court specifies, can only be a “patient and arduous” evaluation. The identification of parties involved can only be of public interest in certain cases, for instance due to the person’s reputation or their role, but this does not hold good for all individuals.

The Court has also confirmed in this case the judicial guidelines according to which, unless certain circumstances exist, individuals involved have the right after a significantly lengthy period of time to not see the republication of news concerning them which contain their personal details.

This is the earliest meaning of the right to be forgotten, which came into being before the Internet, and has once again been confirmed by the Court of Cassation.

Giusella Finocchiaro

Scientific Director
Prof. Avv. Giusella Finocchiaro
Editorial Curator
Dott. Giulia Giapponesi

Lo Studio Legale Finocchiaro prosegue la sua attività con DigitalMediaLaws, la nuova società tra Avvocati fondata dalla Prof.ssa Avv. Giusella Finocchiaro e dal Prof. Avv. Oreste Pollicino.

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