THE RIGHT TO BE FORGOTTEN IN ONCOLOGY

ADVANCEMENTS IN EU AND NATIONAL LEGISLATIONS AND PROSPECTS FOR THE NEAR FUTURE

Resumo

In the European Union legal systems, the right to be forgotten, as a constituent part of the larger right to data protection, is deemed to be a fundamental right. Indeed, the Charter of Fundamental Rights of the European Union, going beyond the traditional respect for private and family life, grants to every natural person the right to the protection of personal data concerning him or her. Some scholars have also argued that the right to be forgotten shall be characterized as a new human right. Whether or not this classification is adopted, there is no doubt that the right to be forgotten is becoming more and more significant, expanding its influence in many fields. One of these areas is related to the legal protection of patients affected by serious illnesses. Especially for those who were diagnosed with cancer, their medical history could create obstacles even after decades after the remittance of symptoms. In this respect, a sectoral approach has been developed by the EU institutions. In the framework of the Directive for consumers credit agreement, enacted in 2023, a specific provision bans the use of personal data concerning consumers’ diagnoses of oncological diseases, for the purpose of an insurance policy related to a credit agreement, after a period of time determined by each Member State, not exceeding 15 years following the end of the consumers’ medical treatment. Apart from this provision pursues the goal of harmonization, several States have introduced national measures that are characterized by a broader scope. For instance, in Italy, the year 2024 has witnessed the entry in force of an Act (known as the “Oncological Oblivion Act”), that is aimed at preventing discrimination against cancer survivors in various areas: access to banking, financial and insurance services; adoption processes; selection processes for a job. In all these cases the time interval to benefit of the right to be forgotten amounts to 10 years, which shall be lowered to 5 years if the diagnosis occurred before the age of 21. Analogous efforts were made in Spain, where a Royal Decree of 2023 promotes the contractual activity of the persons who have suffered from diseases such as HIV and cancer. Starting from the said experiences, the current trend should be strengthened to achieve tangible results. Some of the safeguards implemented at the national level are worth considering as a model for other legislatures worldwide. While performing this task, decision-makers have to keep in mind the importance the importance of balancing individual interests with collective values.