Access to Public Information, Defamation / Reputation
Aécio Neves da Cunha v. Twitter Brasil
Closed Mixed Outcome
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The Mexican Federal Institute of Access to Information and Data Protection (FIAIDP) ruled that personal information relating to an individual involved in labor disputes that was published in official news bulletins constituted an historical record and therefore should not be deleted. The applicant was involved in a labor dispute before the Federal Board of Conciliation and Arbitration (Board), which had served legal documents concerning the case to the applicant through its official bulletin that was published and archived online. The applicant requested the Board remove his private data from the online bulletin because it exposed him to social and employment discrimination. The Board refused, explaining that it could only revise and not delete information. The FIAIDP upheld this refusal affirming the Board’s legal obligation to publish the bulletins as a public record of its activities and therefore the deletion of the applicant’s personal data from the bulletins and the Board’s archives would not be appropriate. However, the FIAIDP ruled that the Board should take steps to de-index the information concerning the applicant from search engine results since that would be in line with the “right to be forgotten,” which every person has in relation to his or her personal data.
Between 2003 and 2004, the applicant had been involved in a labor dispute before the Federal Board of Conciliation and Arbitration (Board). As part of these proceedings, the Board served the applicant by publishing notices in their online Bulletins in February and June 2003. These bulletins were subsequently archived online and any person could find and access information concerning the applicant’s involvement in the labor dispute through a simple web search of the applicant’s name.
In May 2009, the applicant filed a petition to the Board requesting that it cease the online dissemination of his personal data contained in the bulletins of the Board. This petition was denied in August 2009 by the President of the committee responsible for processing complaints relating to personal information. The President explained that the Board published the bulletins through the internet to comply with its legal obligation to make public all servings not made in person. He also noted that the law required them to include the names of the parties and the case number in all publications and that, according to the applicable law, information contained in public registries could not be considered confidential.
On 9 September 2009, the applicant requested that the Federal Institute of Access to Public Information (FIAPI) revise the Board’s decision in light of the fundamental right to the protection of personal data recognized in the Mexican Constitution and the internationally recognized human right to privacy. He argued that the dissemination, through the internet, of the personal data concerning his involvement in the labor proceedings exposed him to social and employment discrimination. He conceded that making servings public was a procedural requirement. However, he considered that there was no justification for the continued publication of the servings after the proceedings were fully concluded.
On 23 September 2009, the FIAPI refused the applicant’s request for revision on the basis that the request was unfounded. The FIAPI considered that the applicant’s request did not meet the grounds for revision as the relevant laws only permitted the revision of the denial of access to information rather than requests for stopping the dissemination of information. The applicant then filed a writ of amparo (a remedy for the protection of constitutional rights) against the FIAPI’s decision. The amparo was decided by the Fourth District Judge of the Auxiliary Center of the First Region (Judge) who concluded that the FIAPI erred in finding the applicant’s request unfounded. According to the Judge, the applicant’s request was, in substance, identical to a request for a correction of personal data and refusals of such requests could be revised by FIAPI according to the relevant law. The Judge ordered the FIAPI to declare its earlier decision void and issue a new decision.
The FIAPI attempted to get the amparo order revised, but was unsuccessful. The FIAPI, which had by then be renamed Federal Institute of Access to Information and Data Protection (FIAIDP), complied with the Judge’s order and declared its earlier decision void. The FIAIDP issued its new decision on 16 March 2011.
Commissioner María Marván Laborde delivered the opinion of the FIAIDP. The issue to be decided was whether the deletion of the applicant’s data from the Board’s bulletins would be appropriate, and whether the applicant’s opposition to the publication of his name in connection with a labor dispute on the Board’s website was supported by law.
The FIAIDP began by distinguishing between the right to the correction of personal data and the right to the deletion of personal data. In this respect, the FIAIDP concluded that the first applies in cases where the information held by a public authority is incorrect or inexact, while the second applies in cases where the holding of personal information by a public authority is unnecessary or excessive. The FIAIDP noted that, while both rights were provided for by the Mexican Constitution, the right to deletion had not yet been fully developed in law. This meant that the FIAIDP was left without guidance as to how to deal with requests for the deletion of personal data.
The FIAIDP then proceeded to examine whether the bulletins of the Board could be considered historical documents as “personal data with historical value cannot be the object of suppression or deletion from the archive in which it is found because it contains secondary permanent value, of informative or testimonial nature, as a primary source in the reconstruction or knowledge of history”. In this regard, the FIAIDP considered the bulletins of the Board to be historical documents, reasoning that they were an informative medium for recording the activities of the Board and its own history. The FIAIDP concluded that the deletion of the applicant’s personal data from the bulletins and the Board’s archives would not be appropriate.
The FIAIDP then clarified that the applicant was not requesting the complete deletion of his personal data but only complaining about the continued dissemination of that data through the Internet. More specifically, the applicant was complaining about the indexation of links to the bulletins through web search engines, which allowed any person to find information pertaining his involvement in a labor dispute by searching his name in a search engine.
The FIAIDP acknowledged that the Internet complicates the exercise of the right to the deletion of personal data as it requires not only the deletion of the data by those who control the websites publishing the personal data, but also by those responsible for web search engines indexing the websites. The FIAIDP then recognised that the deletion of data from the originating website is not always permissible, such as where the website publishing the data is an electronic version of a newspaper or an official diary. It concluded that in cases such as the instant one, were an authority has a legal obligation to publish the personal data, the authority can reject the request for deletion of personal data from its website.
The FIAIDP reasoned that this type of scenario, where the deletion of personal data from a website is not appropriate but the indexation of that website by a search engine remains an issue, engages the right to opposition rather than the right to deletion. The FIAIDP examined the doctrine pertaining to the right to opposition, and concluded that this right will only apply in cases where:
The FIAIDP concluded that the right to opposition applied to the case of the applicant. It noted that it was possible for the Board to adopt measures to prevent the indexation of the applicant’s data in web search engines. The FIAIDP clarified that the goal was for the information to remain in the bulletins on the website, in accordance with the Board’s legal obligations, but for the data not to be as easily accessible through web search engines. It also explained, that this decision would be in line with the “right to be forgotten,” which every person has in relation to his or her personal data.
Finally, the FIAIDP acknowledged that the Board had already committed to taking steps to protect the applicant’s privacy. For instance, it had altered the format of the bulletins containing the applicant’s personal data so that the data could no longer be indexed by internet search engines; it had issued a request to Google, the most used search engine in Mexico, to delete from its index results that linked the applicant’s name with the original bulletins; and it deactivated the ability to conduct a name search through the web portal of the Board. At the time of the decision, Google had not yet responded to the request of the Board and it was still possible to find references to the applicant’s name in the bulletins through a web search. However, it was no longer possible to access his information by clicking on the relevant links.
The FIAIDP noted that it did not have jurisdiction over Google, and it was satisfied that the Board had taken all the necessary measures to stop the indexing of the applicant’s data in web search engines. Thus, it did not revise the original decision from the Board.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision has a mixed outcome by trying to balance between the protection of the applicant’s right to privacy and the right of the general public to access information concerning legal proceedings. The FIAIDP reached the conclusion that information concerning a person’s involvement in a labor dispute should be publicly available but not easily searchable through the Internet (a similar conclusion was reached by the Federal Court of Canada in A.T. v. Globe24H.com). This limits the public’s right to receive information by making such publicly-available documents harder to find online. Nonetheless, on this occasion, FIAIDP did not revise the refusal of the Board to cease the dissemination of the data through the bulletins on its website, and the FIAIDP deferred to the measures adopted by the Board to limit accessibility to these bulletins as being sufficient to protect the applicant’s privacy. This meant that the legal documents were still permitted to be available online, albeit harder to search for.
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