Case Summary and Outcome

The Supreme Court of Chile applied the right to be forgotten doctrine and ordered the El Mercurio newspaper to delete all of the digital information regarding Mr. Graziani’s criminal case. Aldo Graziani filed a writ of protection and asked the Supreme Court to order El Mercurio newspaper to delete a 10-year-old news article about a criminal proceeding against him. He alleged that the news article violated his privacy and human dignity and impeded his social reintegration. The Court reasoned that because the article had been published a decade ago, the right to freedom of expression had to give way to the right of social integration and human dignity. In so doing it said that foreign jurisprudence had developed several criteria in order to balance these competing rights, one of them being the time factor. The Court said this does not mean that information will be deleted from every record but that access to that information will only be available from its original sources to those with real interest in knowing it and with a specific purpose- i.e. research purposes.

Facts

On August, 2004 the portal “Emol.com” (a subsidiary of newspaper “El Mercurio“), published an article which indicated that Mr. Aldo Graziani was the subjected of a criminal investigation into alleged sexual abuse against minors. Until 1999, Mr. Graziani was a member of the Carabiniers of Chile (national police force).

On September 8, 2015, Mr. Aldo Graziani, after serving a sentence for sexual abuse, requested newspaper “El Mercurio” to immediately take down from “Internet search engines” the publication. The newspaper did not respond to the request.

Mr. Graziani then filed a writ of protection in which he alleged that the publication constituted an infringement of his constitutional rights because it prevented his reintegration into society and even affected his family. This was exacerbated by the fact of not having a common last name, which created feelings of insecurity, frustration and impotence. Thus, he considered that his physical and mental integrity and his right to privacy were violated, infringing article 19.1 of the Constitution.

On the other hand, El Mercurio alleged that “Internet search engines use newspapers” in order to inform people looking for specific news articles. The news outlet claimed that removing that information would “constitute a violation of the right to information, a pillar of the journalistic profession.” According to El Mercurio, article 19.12 of the Constitution recognizes that publishing news articles based on real facts is a legitimate exercise of the right to freedom of expression.

The newspaper also alleged that the Press Law provides special procedures such as clarification or rectification, and there is even the possibility of eliminating criminal records from the civil registry. Finally, they stated that the plaintiff did not prove the reasons to remove the article through a certificate of acquittal or dismissal or that there had been a lawful modification of the criminal record.

The first instance did not grant the writ of protection. However, the  Supreme Court granted the request and ordered El Mercurio to eliminate the article from their digital archives.

Decision Overview

The Third Chamber of the Supreme Court decided the case.

The main issue before the Court was to analyze “if the ‘right to be forgotten’ doctrine could be applied in the Chilean legal system” in order to solve the case at hand. For the Court, “the right to be forgotten doctrine establishes that a person can request the removal of certain information that he/she considers unfavorable and produces actual damages.” [p.4]

Firstly, the Court indicated that there was no law in Chile that protects or regulates the right to be forgotten. However, the Court went on to establish that the Constitution does protect the right to privacy and respect for human dignity. It also pointed out the fact that there is an international trend that recognizes the right to be forgotten after a period of time as a form of social reintegration. [p.5]

The Court then delved into the competing interests between the right to be forgotten and the right to freedom of expression. The Court indicated that foreign jurisprudence has developed several criteria in order to balance both rights, one of them being the time factor. According to the Court, “it does not mean that the information will be deleted from every record. However, it does mean that access to that information will only be available from its original sources to those with real interest in knowing it and with a specific purpose- i.e. research purposes.” [p.9]

Secondly, the Court held that keeping a news article after a decade, like the one in this case, is not aimed at informing the public of the events that occurred at that particular time. On the other hand, it acknowledged that El Mercurio‘s news article was a legitimate exercise of the right to freedom of expression. However, in this case, due to the fact that the article was published a decade ago, the right to freedom of expression has to give way to the right of social integration and human dignity.

For these reasons, the Court allowed the writ of protection and ordered El Mercurio newspaper to delete all of the digital information regarding Mr. Graziani’s criminal case in accordance with the right to be forgotten. Specifically, the Court stated that they  “cannot see the current benefit for freedom of expression of keeping a digital record detectable by any Internet search engine, of a news article that can anyway be consulted by analogous methods through the professional investigative exercise of whoever is interested in it. The goal is not that the article ceases to exist, but not to provide automatic and easy access that makes it more difficult or impossible for the recovery and social reintegration of the individual and his family” [p.10-11]

Judge María Sandoval delivered the dissenting opinion. The Judge said that as a general rule, with the passage of time, cases should continue to be mentioned in the press, but the names of the parties involved should be eliminated. She also considered to exceptions for this rule, that is that the right to information will cancel the right to be forgotten despite the time that has elapsed: 1) when there is a matter of historic interest and; 2) that the facts at hand entail the exercise of public activity by a public figure. The Judge asserted that in order to resolve the conflict between the right to be forgotten and the right to information there has to be an analysis of the public and historic interest. She also pointed out the fact that crimes that involve illegal sex conduct against minors are of public interest. She concluded that the Court should not accept the constitutional action requested by Mr. Graziani.