Case Summary and Outcome

The Supreme Court of Spain rejected a right to be forgotten claim lodged by the relatives of a court clerk who participated in the case in which the Spanish poet Miguel Hernández was sentenced to death in 1940. The son of Mr. D. Nemesio, who died in 1998, filed a lawsuit against the Spanish Personal Data Protection Agency to remove eighteen websites containing allegedly inaccurate information about his father. The defendant argued that the information was of public interest and had historical relevance since it regarded the events surrounding the poet’s death, and requested that the case be dismissed. After weighing the rights at stake, the Court held that, in matters of public interest and historical relevance, the right to access information and freedom of expression should prevail over the right to be forgotten. The Court held that the legal protection of the data of living persons is the same as that of the deceased. However, the Court found that the inaccuracies alleged by the petitioner were irrelevant or mere details in contrast to the essence of the information on the websites. The Court concluded, in this case, that the right to be forgotten should not apply because the facts surrounding the death of Hernández concern historical or scientific research of significant public interest, protected by freedom of expression and access to information.  The Court found that allowing the removal of information of historical relevance would make impossible any robust public inquiry and debate about the past.

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Facts

On 6 September 2019, D. Eliseo filed a complaint against the Spanish Personal Data Protection Agency seeking to remove information from eighteen Google websites that contained allegedly inaccurate information about his father, D. Nemesio, who died in 1998. The information referred to Mr. Nemesio as the clerk of the Military Press Court that convicted poet Miguel Hernández and sentenced him to death. Specifically, the petitioner requested that his father’s name not be associated with the eighteen web links linking him to the death of Miguel Hernández. The petitioner claimed that there was information on those websites, accessible through the Google platform, that was inaccurate, which damaged the memory and honor of his father. Among the inaccuracies, the petitioner alleged that the date of his father’s death, professional studies, and the nature of the duties he performed as a judicial officer were incorrectly reported.

On December 3, 2019, the Spanish Personal Data Protection Agency requested that the claim be rejected. The Agency considered that the information on the eighteen websites was of great public interest in Spain, as it reflected Mr. Nemesio’s role as a clerk of the Military Press Court that convicted world-famous poet Miguel Hernández. Thus, the Agency considered that the right to be forgotten of Mr. Nemesio and his family members could not prevail over the right to freedom of expression and access to information on issues of historical relevance for Spanish society.

On June 17, 2022, a court of first instance denied the petitioner’s request to suppress the information. The court held that the historical information regarding Mr. Nemesio’s role as clerk of the Military Press Court that sentenced Hernández to death is of enormous public interest. The court also found that the contested information centered on the professional life of the late Mr. Nemesio and not on his personal life. In turn, the court found that the contested information did not include any substantial inaccuracies that would justify its removal—or blocking the websites hosting it. Finally, the court concluded that the fundamental right to freedom of information and expression must prevail in this case over the right to be forgotten of the deceased Mr. Nemesio and his family members.

Subsequently, the petitioner filed a cassation appeal before the Supreme Court of Spain arguing that his father’s right to be forgotten, as per Article 3.1 of Organic Law 3/2018 on the Protection of Personal Data and the Guarantee of Digital Rights, had been violated.

On February 2, 2023, the Supreme Court of Spain accepted the petitioner’s appeal. The Court held that the appeal was admissible because it was necessary to clarify how to properly interpret the aforementioned law and determine the scope of protection of the right to be forgotten of deceased persons.

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Decision Overview

Judge Diego Córdoba Castroverde delivered the decision of the Supreme Court of Spain. The Court had to decide whether the judgment of the court of first instance violated the right to be forgotten of the deceased Mr. Nemesio and his relatives, by keeping online content about his role as a law clerk in a tribunal that convicted poet Miguel Hernández and sentenced him to death.

The petitioner argued that Article 3.1 of Organic Law 3/2018 protected the right to be forgotten of his father and that the information found on the eighteen websites should be deleted. The petitioner considered that his father’s right to be forgotten should take precedence over the right to information, expression, and historical research. He also claimed that the contested web pages hosted inaccurate data from historical documents, such as the date of his father’s death, his professional titles, and the work he performed at the Military Press Court.

For its part, the defendant requested the appeal to be dismissed. The respondent acknowledged that Organic Law 3/2018 applies to living and deceased persons. However, the defendant argued that data protection should not take precedence over the right to access information of public interest or historical relevance. Furthermore, the defendant stated that the events surrounding the death of  Miguel Hernández were of public interest in Spain. Moreover, the Agency argued that the information hosted in the websites did not contain errors or inaccuracies that affect the essence of the information or news. Therefore, the defendant held that the petitioner did not have a right to be forgotten in light of the information linking his father to the trial of Hernández.

First, the Supreme Court said that the information challenged by the petitioner refers to opinion articles and news items published by various media outlets and university publications that reported that the deceased Mr. Nemesio was a court clerk in the Military Press Court that convicted Miguel Hernández.

Next, the Supreme Court had to consider whether the Spanish legal system could extend its data protection regime to deceased persons. On this point, the Court considered that deceased persons benefit from the same level of protection regarding their personal data as living persons and that the same limits apply as well.

The Supreme Court explained that Article 27 of Regulation (EU) 2016/679 of the European Parliament and the Council of April 27, 2016, on the protection of personal data, does not apply to deceased persons. Nonetheless, the Court noted that said regulation allows Member States of the European Union to regulate this matter freely.

Further, the Supreme Court noted that Article 3.1 of Organic Law 3/2018 establishes that the relatives or heirs of deceased persons may request the correction or deletion of false or inaccurate information from any entity that stores data about deceased persons. However, the Supreme Court said that “the same limitations on the right to be forgotten of natural persons apply to deceased persons.” [p. 7]

Subsequently, the Supreme Court had to consider whether the information on the contested websites was inaccurate and whether its deletion was an appropriate measure.

The Court said that “the right to be forgotten is not absolute and may be limited when it affects the freedom of expression and access to information recognized in Article 20.1 of the Spanish Constitution”. [p. 8] It also explained that the right to be forgotten must be weighed against the transcendence of the inaccuracies in the set of information sought to be deleted. In this context, the Court held that it is disproportionate to block links to articles or delete information from Internet search engines when the inaccurate information is insignificant in contrast to the overall content of those articles.

The Supreme Court specifically examined the inaccuracies alleged by the petitioner. Upon doing so, the Court concluded that they “did not affect the substance of what was reported or the accuracy of the information dealt with as a whole.” [p. 9] The Court, for example, considered as irrelevant the date of Mr. Nemesio’s death, whether he was a lawyer, and the date on which he became a public official in light of the context of the information published on the challenged websites. The Court considered that the essence of the information reflected that Mr. Nemesio was a court clerk in the Military Press Court that convicted Miguel Hernández, as proven by historical archives.

Then, the Supreme Court recalled that in case C-460/20 of the Court of Justice of the European Union, it was established that the right to be forgotten—and the deletion of information—should not prevail under inaccuracy claims regarding data in matters that “may contribute to a debate of general interest.” [p. 8]

Similarly, the Supreme Court held that websites should not be blocked, or information deleted, “when the information concerns historical or scientific research.” [p. 8] The Court opined that allowing the removal of historically relevant information would make impossible any kind of “research into the past”, which is by definition always controversial and debatable because it involves assertions and value judgments about the objective truth of which it is impossible to achieve complete certainty. Thus, the Court concluded that “research about events that occurred in the past involving deceased persons must, when publicly disseminated, take precedence over the right to honor of such persons when it effectively conforms to the uses and methods characteristic of historical scholarship.” [p. 9]

The Supreme Court agreed with the ruling of the first instance court which held that, in this case, the right to be forgotten of Mr. Nemesio and his family should not be recognized because the contested information “is of unquestionable public interest since it concerns the intervention of the petitioner’s father, as a law clerk of the Military Press Court that directed the criminal case against the poet Miguel Hernández.” [p. 10] In addition, the Court stated that the information in the eighteen websites includes historical and scientific research, contained in university and journalistic publications. Likewise, the Court held that the passage of time has not diminished the interest in the events that surrounded the death of the famous Spanish poet.

For all these reasons, the Spanish Supreme Court unanimously rejected the petitioner’s appeal and upheld the first instance judgment.

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