The application by the Spanish Supreme Court of the right to be forgotten

Written on 20 Nov 2015

The right to have information on personal data that violates the right to honour and privacy removed from the Internet does not allow anyone to “tailor-fit” their past.

The right to be forgotten has been at the centre of the ruling of the Supreme Court for the first time. However, it is worth noting that the decision issued by the Supreme Court on 15 October introduces certain clarifications with regard to such right, depriving it of its unlimited and absolute nature.

The dispute presented before the courts arouse when the petitioners were denied the right to have their personal data, which were associated with certain criminal acts that took place during the eighties, removed from the online archive of a renowned newspaper in our country. Besides considering that their right to data protection had been infringed, the petitioners claimed that their right to honour and privacy had also been violated because the newspaper archive published the news item with the petitioner’s names and surnames and this allow major search engines to index the news item by introducing the petitioner’s names and surnames as key words.

The first instance resolved that the petitioner’s right to honour, privacy and data protection had been violated on the grounds that the facts were untrue. At appeal, the Provincial Court also stated in its condemnatory resolution the fact that the editor of the online archive had cease to publish the petitioners’ personal data on the website where the news item was displayed.

Contrary to the arguments of the first instance, the Supreme Court does not contest whether the facts stated in the judgement object of this analysis are true, which, at all events, are regarded as to be true, but whether the processing of the personal data associated with the criminal acts conformed to the principles of adequacy, relevance, proportionality and accuracy. It concludes that the right to data protection and, consequently, the right to honour and privacy were violated because the information on these criminal acts committed long ago can still be accessed by introducing the petitioners’ names and surnames in search engines.

In our view, the Supreme Court examines two essential aspects that have contributed to define the so-called right to be forgotten. On one hand, the time elapsed between the occurrence of the facts and the exercise of the right to have the personal data removed; on the other, the weighting between rights related to personality and the right to freedom of information. The issues at stake are closely associated with the historical and public interest of the information and the public exposure of the players. This question has already been addressed by the well-known judgment issued by the Court of Justice of the European Union in the case Google Spain and Inc. vs the Spanish Data Protection Agency and Mario Costeja (C-131/12). In this sense, we would therefore agree that the fact that the perpetrator or accomplice to a criminal act committed long ago is a person of public relevance does not generate the same amount of historical or public interest to society as if it is a non-public person. Likewise, even though the right to freedom of information is diluted in second publications (as is the case of online archives) this does not mean that rights related to personality yield to the right of freedom of information as long as such information is related to a person of public relevance, has historical or public interest and is true.

From the ruling of the Supreme Court it can be concluded that editors of websites that publish sensitive information on personal data cannot be exempted from liability since, according to the data quality principle, they shall deal with the rights of cancellation and opposition to the processing of data. Moreover, they have the power to determine, by using exclusion protocols, that certain information published either in full or in part on the website is excluded from search engines, thus avoiding serious prejudice to the right to honour and privacy of individuals.

However, the liability that website editors and search engine managers may incur cannot lead us to think that the right to be forgotten is an absolute and unlimited right or that internet users can set up their profile on the Internet and decide what information should be made available to the public or not. In fact, deletion of personal data from news items published on online newspaper archives cannot be considered legitimate because it would require disproportionate efforts from the editor of the website and is not protected under the rights related to personality. Besides, with regard to the indexing of personal data by website internal search engines, the weighting between the right to freedom of information and the right to honour, privacy and data protection tips the balance in favour of the right to freedom of information because a search engine is no more than the digital materialization of the tasks of consultations traditionally performed in newspaper archives, which must not under any circumstances become emptied of content.