Il motore di ricerca quale hosting provider attivo responsabile civilmente per la lesione del diritto all’oblio

Abstract

The article analyzes the civil liability of the search engine in case of violation of the right to be forgotten, describing the recent dotrinal and jurisprudential trends in favor of the existence of an active hosting provider. The consequence of these trends is the non-application of the principle of neutrality indicated in the Directive concerning electronic commerce, which, by excluding a general duty to monitor the content posted by users, excludes any provider’s liability. In particular, active hosting providers may be qualified, under certain conditions, as processors of personal data, according to the GDPR, with the consequent liability in case of damages caused as a result of the violation of the duties indicated in the General data Regulation. A confirmation of the existence of the active hosting provider comes from the administrative jurisprudence, which, considering the active role of the provider, has recognised the possibility of considering it as a professional, according to the discipline of unfair commercial practices, with the consequent liability in case of a breach of the duty of diligence. The times seem ready, then, for a regulation of the European legislator in this area.