Defamation / Reputation
Afanasyev v. Zlotnikov
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The First Chamber of the Spanish Constitutional Court held that preventing the indexing of the individuals’ personal data from the internal search engine on a newspaper’s digital archive was necessary for the protection of their rights but that this did not extend to an obligation to anonymize the names from the original articles themselves. In 2011, a number of Spanish citizens who had been convicted of drug offences in the 1980s brought an action against Spanish newspaper El Pais to challenge the re-publishing of articles from the 1980s about their convictions on the newspaper’s online portal. The Court held that limiting access to the article through searches against the name and surnames of the individuals was sufficient for the protection of their rights, making the alteration of the actual content both unnecessary and a disproportionate form of interference with freedom of expression.
In the 1980s, the Spanish newspaper El Pais had published an article concerning the disbanding of a drug trafficking operation. The article described the functioning of the operation and how several of the implicated persons had suffered from withdrawal syndrome after being incarcerated due to them being drug addicts. Among those implicated in the operation were several members of high society and a family member of a high ranking public servant. These persons were fully identified in the article by their names and surnames as well as information detailing their professions.
In 2007, El Pais established a free-to-access online digital archive containing digital versions of all of its articles. Searching for the names of those implicated in the operation on Google (the most popular search engine in Spain) resulted in a link to and an extract of the article as the top result. Consequently, several of the persons whose names and information appeared in the article brought action in 2011 against El Pais claiming the online re-publishing of the article was in violation of their rights to privacy, honor and protection of their personal data.
The individuals first made their request directly to El Pais asking them to cease the publication of their data or, alternatively, to edit out their names from the online version of the article replacing them with their initials and adopting technological measures necessary to ensure the article was not indexed by online search engines for searches against their names. El Pais refused, citing its right to freedom of information and the impossibility of preventing the indexing by the search engines.
Given El Pais’ refusal, the individuals proceeded with judicial action before the Twenty First Court of First Instance of Barcelona. The individuals argued: (1) that the re-publishing of the article in the online archive constituted a new publication and a new form of data processing that was in violation of their rights; (2) that the information contained in the article was no longer of public interest due to the passage of time; (3) that none of them had ever been public figures; (4) that the information was no longer accurate as the protagonist of the story had overcome his or her drug addiction and had had his or her criminal record cancelled; (5) that the continued accessibility of the original story through the Internet resulted in them being judged ad aeternum (that is, for eternity) for what had happened many years ago which unjustifiably violated their right to social reintegration; (6) that the online publication had not pursued ends of a statistical, scientific or historical nature; (7) and that Spain’s data protection legislation prohibited the review of policy, judicial and clinical records without the express consent of the data rights holder.
El Pais in turn argued that: (1) the time frame for legal action had expired as more than four years had passed since publication; (2) that the passage of time did not make the news article lose its veracity or its public interest value; (3) that the information contained in the article could not be classified as being of an intimate nature; (4) that the legitimate exercise of freedom of information outweighed the individuals’ rights; and (5) that it was not the newspaper’s responsibility, but that of the search engine service providers, to prevent indiscriminate access to the article.
The Twenty First Court of First Instance of Barcelona ruled in favor of the individuals. It concluded that El Pais had violated their rights because it had not adopted any measures to prevent indiscriminate access to the article and instead had facilitated the finding of the articles through search engines to maximize economic gain. The Court reasoned that the information contained in the article was no longer accurate as the individuals had overcome their drug addiction and had had their criminal records erased, and that the article was no longer of public interest given the passage of time. Thus, the First Instance Court ordered El Pais to pay monetary compensation to the individuals, to cease the dissemination of the article, and to apply technological measures aimed at ensuring the article would not be found through Google searches of the individuals’ names and surnames.
El Pais appealed this decision and the individuals cross-appealed because of the First Instance Court’s failure to decide some of the measures they had requested. The Fourteenth Section of the Provincial Audience of Barcelona rejected El Pais’ appeal and agreed with the individuals’ arguments, ordering El Pais to cease the use of their personal data (name, surnames and initials) on the source code of the article’s web page and to abstain from using such data in any news published by El Pais pertaining to the judicial proceedings brought forward by the individuals.
El Pais then filed an extraordinary remedy against the Fourteenth Section’s decision which was partially accepted by the Supreme Tribunal on October 15, 2015. The Tribunal Chamber rejected El Pais’ claim that the statutory time limit for the individuals’ action had expired, holding that the action did not pertain to the original publication of the article but rather to the continued and automatic processing of their data for Internet dissemination purposes. The Chamber also concluded that El Pais was responsible to ensure the data published on its web page met the standards set by European data protection law. However, unlike the lower courts, the Chamber did not consider the passage of time and the changes of the circumstances to mean the article no longer met the standard of accuracy. In the opinion of the Chamber, the problem was not that the information was no longer accurate but that its continued dissemination was not necessary for the historical record. According to the Chamber “[a] dissemination that may have been initially relevant to the ends that justified it might, because of the passage of time, become less relevant or excessive for those ends, causing disproportionate harm – in relation to the right that supported the dissemination – to the personality rights of the affected such as honor and privacy”.
The Chamber then proceeded to perform a proportionality balancing test between El Pais’ and the individuals’ rights. For this purpose, it considered the value of newspaper’s digital libraries as a tool for the fulfillment of access to information as recognized in decisions from the European Court of Human Rights; that online publication carries a higher risk of harm to personal reputation; that the individuals were not persons of public relevance; and that the information was not historically significant. It also considered the Spanish Supreme Tribunal’s case law pertaining to the right to be forgotten.
Based on this analysis, the Chamber considered that it was unwarranted to order El Pais to alter the information contained in its digital archive or to block the article from being associated with the names and surnames of the individuals for purposes of the digital archive’s internal search engine. However, it ordered the implementation of “no index” instructions to impede general purpose search engines such as Google and Yahoo from accessing the article through searches for the names and surnames of the individuals. Thus, the Chamber revoked the orders of the Fourteenth Section Tribunal pertaining to the removal of the individuals’ names, surnames and initials from the article’s source code to prevent the indexing of such personal data for purposes of the digital archive’s internal search engine, while maintaining the rest of the orders.
The individuals then filed a nullity incident against the cassation decision claiming that such decision had revoked measures that were proportional for the protection of their rights and that receiving protection only from de-indexing of their data for use by general purpose search engines was insufficient in light of new technologies such as “Big Data”. This incident was rejected on February 17, 2016.
The individuals then filed an “amparo” action (a remedy for the protection of constitutional rights) and requested and annulment of the decision.
Magistrate María Luisa Balaguer Callejón delivered the decision of the First Chamber of the Constitutional Tribunal. The issue for the First Chamber to decide was whether the cassation decision had been correct in considering some of the measures ordered by the Fourteenth Section Tribunal disproportionate and thus revoking them.
El Pais defended the Supreme Tribunal Chamber’s decision arguing that it has been reached through an adequate proportionality balancing exercise.
The Public Ministry – a Ministry analogous to the Attorney General’s office which is required to provide an argument in any constitutional matter – considered that the Fourteenth Section Tribunal’s order to prevent the indexing of the article so it could not be found on the internal search engine through a search of the individuals’ names and surnames was proportionate and should not have been revoked. The Ministry disagreed with the Supreme Tribunal Chamber’s reasoning that indexing on an internal search engine was not as revealing as indexing on general search engines and that maintaining the indexing on the internal search engine protected the right to information. According to the Ministry, protecting the right to access information for the “sector of the public” which would use the newspaper’s internal search engine, did not qualify as a public interest justification to allow for indexing in the internal search engine. The Ministry argued that allowing for indexing on the internal search engine was a violation of the individuals’ rights. The Ministry, however, considered that the Supreme Tribunal was correct in revoking the order to suppress the name, surnames and initials of the individuals from the online version of the article.
The Chamber reviewed the definition of the right to be forgotten contained in Rule 2016/679 of the European Parliament and Council and the Supreme Tribunal’s case-law. It acknowledged the right to be forgotten may in certain cases be outweighed by the right to information and identified two key elements that had to be assessed when balancing those two interests: the passage of time and the value of digitizing the information.
The Chamber then proceeded to review its prior doctrine on the subject. It noted that, while the accuracy of the information was an essential element, accuracy could not justify on its own an invasion of privacy unless the information is also of public relevance. It also noted that it was accepted doctrine that facts relating to criminal matters were by nature of public interest. However, the Chamber also noted that information that was originally of public interest may lose its public or informative value due to the passage of time to acquire, or not, an historic, statistical or scientific value. The Chamber reasoned that, under such circumstances, freedom of information may not necessarily outweigh the right to privacy.
The Court then reviewed the European Court of Human Rights decision from the Times Newspaper Ltd v. United Kingdom Apps No. 3002/03 and 23676/03 case in which the Court concluded that States have a wider margin of appreciation when balancing of freedom of expression and privacy in cases relating to past events than in cases relating to recent events. In light of this decision, the Chamber reasoned that media outlets serve two roles: informing societies; and compiling records useful for historical research. In the view of the Chamber, while both roles demanded protection, historical research should be afforded less protection when balanced against the right to privacy. The Chamber further noted that while the universal prevalence of digital libraries has contributed greatly to both of the roles, it has also increased the impact of the press on the privacy rights of those featured in the libraries’ articles.
After reviewing those principles, the Chamber proceeded with its analysis acknowledging: (1) that the facts reported in the online article were accurate; (2) that the information was of questionable public relevance given the passage of time; (3) that none of the individuals were persons of public relevance; and (4) that the crime the individuals were involved in was not of grave seriousness and did not have any kind of special societal impact at the time of the events. Based on these findings, the Chamber concluded that the harm the dissemination of the article could cause to the honor and privacy of the individuals was disproportionate in relation to the limited contemporary interest on the information.
The Chamber concluded that prohibiting the indexing of the names and surnames of the individuals for purposes of the digital library’s internal search engine was a proportionate measure. The court reasoned that such a measure would prevent an ad hominem search of an individual’s past while still allowing for the article to be found through other types of searches such as thematic, temporal or geographic searches. The Chamber added that the article would remain available both on paper and in digital forms, with the only limitation being a restricted means of accessing it.
The Chamber, however, did not consider the measure of requiring the editing of the names, surnames and initials of the individuals from the digital version of the article to be necessary. It considered that limiting access to the article through the de-indexing of the name and surnames of the individuals was sufficient for the protection of their rights making the alteration of the actual content unnecessary. The Court considered that requiring these alterations would imply a more significant form of interference with freedom of expression, in comparison to just limiting the dissemination through de-indexing, which was not justified.
Accordingly, the Chamber partially granted the amparo, reinstating the Fourteenth Section’s decision to prohibit the indexing of the individuals’ name and surnames for use by the internal search engine of El Pais’ digital library.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision seeks a balance between the public interest in old newspapers articles being available on digital libraries and the rights to privacy and dignity of those featured on the articles. The Constitutional Tribunal’s Chamber considered that an adequate protection of the right to privacy demands preventing old newspaper articles containing information potentially harmful to the reputation of non-public persons from being accessed through searches of the names and surnames of the persons not only through general purpose search engines but also through the internal search engines of the digital libraries. However, the Chamber also considered that ordering the altering of the actual content of the articles would represent an excessive invasion of freedom of the press that could not be justified by the protection of privacy rights after access had already been limited through de-indexing.
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