Case Summary and Outcome

On August 10, 2020, the Argentinian National Civil Court of Appeals (“the Court”/”Appellate Court”) upheld a lower court’s judgment that partially admitted the plaintiff’s claim by ordering Google Inc to remove the content that showed scenes of fights and arguments between the plaintiff and other interviewees on television programs. However, it rejected her petition to remove the content associated with the criminal proceedings on the ground that certain existing information referred to a fact that influenced a specific time and, therefore, constituted part of the society’s collective memory. The plaintiff, Natalia Denegri, got media attention in the mid-1990s for being linked to a TV scandal known as the “Coppola case”. She sought legal recourse against the search engine, requesting her right to be forgotten. Ms. Denegri claimed that although more than two decades had passed, the information continued to appear in the search results. She also claimed the information belonged to a past that she wished to forget and that the content was old, irrelevant, unnecessary, and obsolete, without any journalistic pertinence. This is the first case in which the Argentinian judicial power has recognized the “right to be forgotten”.

Facts

Natalia Denegri, an Argentine businesswoman, host, and producer, filed an urgent legal case against Google Inc., demanding that the search engine remove content related to media events and the criminal case brought against Diego Maradona’s ex-representative, Guillermo Coppola, for which he was imprisoned for three months in 1996.

She admitted that the events did occur and pointed out that she was a victim of a criminal investigation unlawfully orchestrated when she was a minor. She mentioned that the information provided by the results of this search was embarrassing and that it belonged to a past she wished to forget. She noted that such information was old, irrelevant, unnecessary, obsolete, and without any informative and journalistic significance. Moreover, the plaintiff considered that the events that took place 24 years ago infringed her rights to honor and privacy. According to Ms. Denegri, such rights trump the public’s right to information.

On April 20, 2020 the National Civil Court partially admitted the claim of Natalia Denegri and ordered Google to “de-index” all the images and videos related to the widely known “Coppola case” for being harmful to her image and honor. In the decision, the presiding Judge Hernán Horacio Pagés held that such content lacked journalistic interest and had no cultural or informative value. Yet, Judge Pagés found that it had not been sufficiently demonstrated in the case that the journalistic content of the written press was associated with morbidity or eccentricity. Thus, the requirements for the application of the right to be forgotten were not met.

Ms. Denegri appealed the partial acceptance of her claim. She emphasized freedom of expression and criticized the judge who had failed to indicate which content should be de-indexed. As a result, Google itself became the content censor.

Google also appealed the judgment, claiming that the characterization of the right to be forgotten by the First Instance Judge had been erroneous since no law regulates it. Additionally, the platform explained that Ms. Denegri should have sued the media that disseminated the news rather than Google since it is merely a search engine. Google further indicated that Ms. Denegri had voluntarily participated in media programs that she later claimed to have aggravated her.

Decision Overview

Judge Claudio Kiper presided over the decision and was supported by Judges Liliana Abreut and José Benito Fajre. The primary question before the Apellate Court was whether the lower instance body had correctly decided between the right to honor and privacy, and the right to freedom of expression, disseminating news, and access to information.

The Court clarified that the rights enshrined in the Constitution are not absolute, but are subject to limitations and restrictions. Yet, the instant case presented a peculiar nuance since the plaintiff invoked the “right to be forgotten”. In the Court’s opinion, accepting such a claim would imply recognizing the veracity of the news disseminated by the search engine; but if the information was harmful, lacked public, historical, or scientific interest, it would be buried with time. In contrast, the Court explained that if the news was false and defamatory, there would be other remedies without invoking the passage of time.

Additionally, the Court recognized that no specific rule regulates the right to be forgotten. However, the absence of regulation was unnecessary since it should be approached as a derivation of the rights to honor or privacy. Thus, the right to be forgotten could be a helpful tool to enforce the rights to honor or privacy. Likewise, the Court considered that under certain circumstances, the law regulating habeas data could also be used by analogy.

In the Court’s reasoning, what matters in cases where the so-called right to be forgotten is invoked, is to identify what rights are at stake, seek a balance, and then make a decision. Yet, it recognized that it is not a simple task because the balancing exercise must take into consideration the public’s right to be informed and the press’s right to disseminate. The Court also recognized that censorship is not allowed as a general rule, regardless of the possible subsequent liabilities. Nevertheless, in the immediate case, the Court considered there was no censorship since it revolved around news and broadcasts that were reproduced 24 years ago, which was reasonable.

In the same vein, the Court held that if each individual decided what information about them could be made known, the right to information could be seriously infringed. Further, it affirmed that the so-called right to be forgotten is of restrictive interpretation.

Regarding the news items, the Court distinguished between those referring to the criminal investigation of the so-called “Coppola” case and those reproducing scenes of fights and arguments between the plaintiff and other interviewees on television programs.

In regards to the fraudulent criminal investigations which led to the conviction of a former federal judge, the Court concurred with the lower court’s reasoning that it was a fact of public interest. In the Court’s opinion, it had not found sufficient justification for removing the news related to this fact from the search engine. Further, it considered that since it had been previously proven that the plaintiff was the victim of illegal maneuvers, such dissemination benefitted her rather than harming her.

The Court then highlighted that blocking of access to digital content by search engines must be preceded by an examination of the lawfulness of the content. It referenced the 2013 Inter-American Commission on Human Rights (IACHR) Report of the Special Rapporteur on Freedom of Expression and the Internet to reinforce this argument. The report establishes that blocking of digital content shall only be exceptionally admissible under the strict terms set out in Article 13 of the American Convention. Likewise, it mentioned that the IACHR has regarded that content blocking measures cannot be used to control or limit the dissemination of specially protected speech or speech that has a presumption of protection when a competent authority has not rebutted such presumption. Moreover, the Court held that following the Joint Declaration on Freedom of Expression and the Internet, the mandatory blocking of IP addresses, as requested in the present case, constituted an extreme measure.

The Court acknowledged the right to be forgotten, as recognized by the Court of Justice of the European Union in the case of Costeja v. Google, as an alternative to reconcile the tension between the right to freedom of expression and the right to honor or privacy. Per the Costeja criteria, the plaintiff must justify the reasonability of the request and prove that the affected rights prevail over the right to freedom of speech.

Then, the Court moved on to analyze the plaintiff’s claim related to the dissemination of the videos showing scenes of fights and arguments between the plaintiff and other interviewees on television programs. It considered that the right to be forgotten seeks to prevent immediate access to information that hinders or makes the social reintegration of individuals and their families almost impossible. Hence, the Court deemed that the removal of these videos was, in fact, applicable since their contents lacked social and journalistic interest and they provided no cultural or informative value. Moreover, regarding this claim, the Court considered that the right to honor was affected, but not the right to privacy since the plaintiff exposed herself publicly.

Finally, the Court analyzed Google’s complaint regarding the fact that it had been ordered to pay the costs, despite the partial progress of the lawsuit. In the Court’s view, such a grievance could not be admitted since the general principle established by Article 68 of the Procedural Code is that of the imposition of costs on the losing party. Furthermore, the Court estimated that if the search engine had accepted some of Ms. Denegri’s claims, this litigation would not have occurred.

In light of the above, the Court ordered Google to remove the content that showed scenes of fights and arguments between Ms. Denegri and other interviewees on television programs. It ordered the search engine to “remove all links from its search engines”, including the Youtube platform, among the words, “Natalia Denegri”, “Natalia Ruth Denegri”, or “Natalia Denegri Coppola case”, as well as any eventual image or video obtained twenty years ago or  exhibit scenes in which the plaintiff may have starred in or that may show verbal or physical aggression, insults, discussions, singing and/or dancing scenes, or TV reports on Denegri’s private life.

However, the Court rejected her petition to remove the content associated with the criminal proceedings on the ground that if certain existing information referred to a fact that influenced a specific time, then it constituted part of the society’s collective memory.