Defamation / Reputation, Digital Rights, Press Freedom, Privacy, Data Protection and Retention
Abreu v. Google
Closed Expands Expression
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The Supreme Court of Chile partially revoked a ruling of the Court of Appeals of Concepción that rejected a writ for protection filed by Maureira Álvarez, a former public official, against media outlets for maintaining internet-based publications connected to a criminal investigation into his alleged role in the embezzlement of public funds. While the veracity of the events were agreed upon, Mr. Álvarez argued that the charges had been dismissed and that that the permanence of incomplete information online violated his right to privacy and honor and submitted that the latter rights should prevail over freedom of expression. The Court observed that despite the passage of time and the dismissal of the charges, the information maintained public relevance since it concerned allegations of corruption against a public official in his professional capacity. As Chilean law does not recognize the so-called “right to be forgotten,” the Supreme Court weighed the right to access information against the right to private life and honor to hold that the media outlets had violated the Mr. Álvarez’s right to honor by failing to include the definitive dismissal of the charges against him. Hence, the Court further ordered the media outlets to update their posts to include a link to the full text of the judgment dismissing the charges against Mr. Álvarez.
In July 2012, the Chilean Defense Council of State presented a lawsuit against Benjamín Maureira Álvarez, Plaintiff, the then Regional Secretary of Education, claiming that he had committed the crime of embezzlement of public funds between 2009 and 2010.
On March 17, 2013, the Guarantee Court of the Municipality of Concepción held a preliminary hearing in which the prosecution presented the charges against the Plaintiff. However, on May 11, 2018, the Court of Appeals of the Municipality of Concepción ruled in favor of the Plaintiff and ordered the definite dismissal of the allegations in accordance with Article 250 b) of the Criminal Procedural Code.
The main issue before the Supreme Court of Justice of Chile was whether the news published regarding the investigation of Mr. Maureira Álvarez infringed his rights to privacy and honor.
Mr. Maureira Álvarez (Appellant) presented an appeal before the Supreme Court related to a previous judgment rendered by the Court of Appeals of Concepción, which had rejected his request for a writ of protection against Google.cl, El Mercurio SAP, Biobío Comunicaciones SA, La Plaza SA, CNN Chile Canal de Television Ltda., Nos Magazine, Radio University of Chile, National Television of Chile, Chilean Communications Company and Senator Alejandro Navarro Brain (Respondents).
Mr. Álvarez asserted that the Respondents had arbitrarily and illegally maintained a series of online publications relating to a court hearing in respect of a lawsuit that claimed that he had committed the crime of embezzlement of public funds. Mr. Álvarez contended that contrary to what was concluded by the Court of Appeals on the criminal allegations made, the tort in retaining the news article did not originate from the inaccuracy, lack of integrity, or falsity of the news, but from its permanence on the internet, indefinitely, despite the fact that the event occurred before seven years.
Additionally, the Appellant stated that the information had undoubtedly ceased to have any public interest under Article 1 of Law No. 19,733. Likewise, he claimed that the right to inform must dissipate over time, giving way to the right to be forgotten. He argued that the permanence of the inaccurate information online violated his right to privacy and honor and submitted that the latter rights should prevail over freedom of expression.
The Court began its analysis by pointing out that it was undisputed by the parties that facts which formed the basis of the information and the news on the search engine did occur. Likewise, the Court recognized that the records showed that the Court of Appeals of Concepción, on May 11, 2018, issued a definitive dismissal in favor of Mr. Maureira Álvarez under article 250 letter b) of the Code of Criminal Procedure.
Additionally, the Court stressed that since the so-called right to be forgotten invoked by Mr. Maureira Álvarez is not contemplated in the national legislation, the Court’s decision would require analysis from the perspective of the potential rights affected. The Court opined that the possible rights in jeopardy were access to information and the right to private life and honor.
In light of Article 30 of Law No. 19,733 on Freedom of Opinion and Information and the Exercise of Journalism, the Court determined that the information requested to be deleted was of an alleged crime carried out when he held a position of public relevance. Therefore, it was a matter of public interest.
Further, the Court also considered that as per the Appellant’s submissions, the so-called right to be forgotten must prioritize the right to information when disclosure of facts is relevant to the public interest. Consequently, the Court highlighted that the information that tied the Appellant, who served as the then Regional Secretary of Education, to the commission of a crime of embezzlement of public funds was undeniably a matter of public interest; thus, protected under the right to information.
The Court determined that the request for the deletion of the news was unfounded since it had been published lawfully. However, the Court concluded that the Respondents i.e., Sociedad La Plaza SA, Revista Nos, Televisión Nacional de Chile, and Compañía Chilena de Comunicaciones had arbitrarily maintained the publication where the information was incomplete and had failed to incorporate the definitive dismissal of the charges against the Appellant. Therefore, the publication violated Mr. Maureira Álvarez’s right to honor guaranteed by N°4 of Article 19 of the Constitution. Accordingly, the Court directed the Respondents to update the information by including the Court of Appeals’ decision, which dismissed the claims against the Appellant. Additionally, the Court requested the media outlets to add a link to the full text of the Court of Appeals’ judgment so that readers may learn that the Court had ruled in favor of the Appellant. The Court also held that the Court of Appeals’ decision was applicable even to remaining Respondents.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expanded Freedom of Expression since the Court ordered the media outlets to update the news report to include a link to a Court of Appeals’ ruling, thereby providing the complete access to information to the users/ public. Freedom of speech also encompasses the right to information which is true and unaltered. By directing the Respondents to make complete disclosure with respect to the outcome of Court of Appeals, the decision enforces and expands the right to free speech in its true sense. Another positive aspect lies in the Court’s decision that the so-called right to be forgotten must prioritize the protection of the right to information when the disclosure of facts is relevant to the public interest.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
No. 4: Respect and protection of the private life and honor of the individual and
his family, and specifically, the protection of his personal data.
Law on Freedom of Opinion and Information and the Exercise of Journalism
Case significance refers to how influential the case is and how its significance changes over time.
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