Right to be forgotten, regarding the case of Natalia Denegri

 If it's on the internet, won't you forget? 

The judges Claudio Kiper, Liliana Abreut and José Benito Fajre confirmed the judgment of the National Court of first instance of the city of Buenos Aires in which the damage caused to Natalia Denegri by the registration of articles and videos from the 90s in the that he was linked to the Argentine businessman Guillermo Coppola. In those years, she was the victim of the implantation of false evidence and of the deprivation of her liberty in an illegal way, she said. Ambit.

In that sense, Google was ordered to de-index the links that displayed videos, images and articles related to that episode in his life. This is the first judicial decision that recognizes the right to be forgotten in Argentina and will be a precedent in the jurisprudence of that country on the responsibility of internet search engines, versus that of the publishers of the web pages that host the content that is harmful to the plaintiffs. , in this case, for Mrs. Denegri.

According to the judges, the information ordered to be "de-indexed" was not newsworthy. With which, it did not suppose an assumption of censorship. However, it did imply an impairment of Mrs. Denegri's right to honor. In this regard, can website writers mention personal data on their websites without restriction? According to numeral 12 of article 14 of the Peruvian Personal Data Protection Law, the consent of the owner of personal data is not necessary when the treatment is carried out in the constitutionally valid exercise of the fundamental right to freedom of information. Freedom of information? The information entered must be informative, it must be relevant to public opinion.

The Peruvian Directorate General for the Protection of Personal Data, through Resolution No. 2283-2018-JUS / DGTAIPD indicated as criteria to analyze the relevance for the protection of the right to cancel and oppose personal data (both with the same effects as the right forgotten):

(i) If the published information maintains current public interest.

(ii) The public relevance of the claimant.

Thus, the analysis parameter referring to the interest of public opinion should be clear.

For its part, the Google representation in Argentina stated that “A more in-depth debate on this decision is important to assess the consequences of enabling the deindexation of legal content related to events of broad public impact".

The first case of recognition of the right to forget happened on May 13, 2014, with the ruling of the Spanish court of justice on the famous Costeja case. The Spanish citizen sued Google in view of the fact that, when doing a search with his name, the search engine returned the online edition of the newspaper La Vanguardia in which two announcements of a real estate auction related to an embargo for debts to the Social Security. The owner of these properties auctioned by embargo was Mr. Costeja. In 2009, he decided to contact La Vanguardia, but when he refused, he went to the Spanish Agency for Data Protection. It happens that the debt with Social Security had been fully paid many years before, with which, the information contained in such links was irrelevant and obviously damaging to its reputation.

However, it is important to bear in mind that the right to be forgotten is not absolute. As pointed out by the German Supreme CourtContent that has passed the individual evaluation of the impact on the interests of individuals versus those of public opinion will be subject to deindexation. In this sense, the case of a charitable institution in Hesse (Germany) that requested the elimination of press reports on economic problems of the entity was mentioned as an example. However, it was appreciated that, in this case, the public interest prevailed over the informative self-determination of this charitable institution.

Similarly, in Peru, there have been many cases of habeas data lawsuits to delete information on the network, as well as claims before the Personal Data Protection Authority for the same purposes. However, as mentioned in the portal Public Eye, these actions can severely affect the public interest. This is what happened with the “Arévalo Case”, a citizen with a history in the police anti-drug directorate with alleged ties to drug trafficking who sent notarized letters to various media in order for them to withdraw the journalistic notes that mentioned him Later, he initiated actions in the Judicial Branch and in the data authority. In this sense, the right to be forgotten can be a double-edged sword, therefore, its protection must involve a thorough analysis of each specific case.

A preliminary step, why can guardianship requests be directed directly to Google (the search engine) and not to the website publishers? Since they are the ones who finally posted this information, removing the information from such sites would eliminate the root problem. However, it happens that there is no obligation for data holders to address first to the editor of the website and, failing that, to the search engine, they can make their claims to any of them without distinction. On the other hand, the so-called “hypervisitizing” effect of the Google search engine could be more harmful to the owner of personal data than the web page that contains their personal data. Clearly, without the Google search engine, the information found on web pages would not have the same scope, both in the number of people who can access that information and in the permanence of this content over time.

Undoubtedly, this issue has multiple edges to address, but the analysis of each new case can help us to consolidate at least some of them.


*The opinions expressed in this article are those of the author and do not necessarily reflect the views of the administrators of The Crypto Legal blog or the Lawgic Tec association.

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Marilú Lazo
Lawyer from the Pontificia Universidad Católica del Perú (PUCP). She has experience in corporate advice, as well as in matters of personal data protection and new technologies.

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