Intermediary Liability, Privacy, Data Protection and Retention, Religious Freedom
J20 v. Facebook Ireland Ltd
Closed Expands Expression
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The Supreme Court of Argentina unanimously rejected a “right to be forgotten” petition by an anchorwomen to have Google de-index embarrassing content from her past. Natalia Denegri, a famous TV presenter, brought the petition in relation to videos of her participation in a TV talk show where she was verbally and physically abusive to other participants. She argued that the content was no longer relevant and that its easy accessibility infringed her rights to privacy, intimacy, honor, and reputation. The Court observed that de-indexation requests could result in a form of prior restraint and therefore required strict scrutiny. Further, the Court considered de-indexation to be an “extreme measure” as it restricts the flow of public interest information. In the present case, the mere passing of time did not render the information irrelevant and as Ms. Denegri is a public figure freedom of expression must be weighed more heavily than the right to honor and reputation.
Natalia Denegri is a famous TV presenter, who was involved when she was a young woman in a very public scandal involving football manager Guillermo Coppola. Coppola represented superstar Diego Armando Maradona in the 1980s and 1990s, among other famous players. During that time Mr. Coppola was accused of possessing drugs, which an investigation found to have been fabricated by corrupt policemen and judges. During the period of the scandal, a TV talk-show covered the case extensively, and Ms. Denegri was invited to take part in heated debates around the judicial inquiry on live television. During the broadcast of many of these shows, Ms. Denegri was at times verbally abusive, and even physically aggressive, towards some of the participants. In 2016, years after the events, Ms. Denegri sued Google to remove content relating to those broadcasts invoking the right to be forgotten which had been recognized by the European Court of Justice in the famous case of Google Spain v. Agencia Española de Protección de Datos. By then Ms. Denegri had established a successful career as an anchorwoman in the United States. While she accepted that the information she sought to have removed from the search engine was accurate, she questioned its relevance. She argued that she was “embarrassed” by those events, and considered that the right to access information should give way to her right to privacy, intimacy, honor, and reputation.
A trial judge partially accepted her request, which was later ratified by the Appellate Civil Court in the city of Buenos Aires. The Court considered that the right to be forgotten should be recognized when dealing with information that has no “public, historic, or scientific” interest whatsoever. The Appellate Court observed that removing specific information from search results does not delete it, but rather that it simply makes accessing it more difficult. The Court considered that even though the “right to be forgotten” had not been recognized by the legislature, it was a suitable means to balance reputational interests against access to information claims. The Court also highlighted the young age of the plaintiff when the events took place.
In a unanimous decision, the Supreme Court of Argentina revoked the appellate decision. The Court started by highlighting its traditional case-law on freedom of expression, recalling how this right is fundamental for the functioning of a democratic society. In particular, the Court recalled its Rodríguez decision of 2014, which laid down a limited principle of liability for search engines. According to that principle, search engines should not be held liable for illicit content posted on platforms by third parties unless they had been notified of such illegality by a judge. Only in the cases of “manifest illegality” should search engines act upon a private notification.
The Rodríguez decision was an important landmark because it recalled the transformative nature of the Internet, which was praised as an instrument for guaranteeing freedom of expression and the formation of public opinion. The Court considered that an “incalculable number of people around the world can express their opinions and share information in a decentralized fashion … and that this by itself increases the power to search and access information” [para. 9].
In Denegri, the Court recalled that all restrictions or limitations on the free flow of information should be narrowly construed. Any kind of prior control or restraint is presumptively unconstitutional [para. 11]. And the Court framed de-indexation requests as precisely that kind of action, that deserves the most careful and strict scrutiny. For the Court, de-indexation is an “extreme measure … that gravely restricts the flow of public interest information” [para. 12]. Furthermore, the Court considered that even though de-indexation entails limiting just one means of accessing the information in question, it also found that the overall effect of de-indexing and total censorship may very well be the same [para. 12].
Based on those considerations, the Court found no difficulty in rejecting the plaintiff’s demand. The “mere passing of time”, according to the Court, did not render the information irrelevant in any way. To conclude otherwise would “seriously threaten history, as well as the exercise of social memory that feeds itself from different cultural facts, even when the past appears as unacceptable or offensive according to current standards” [para. 14]. The Court also considered that if memories or past acts on the public record could simply be restricted, a dangerous precedent would be set, that would threaten to distort public debate – which the right to freedom of expression guarantees [para. 14]. The Court supported its conclusion on the ground that Ms. Denegri is a public figure, who willingly took part in a public debate. Indeed, the Court affirmed that in conflicts between honor and freedom of expression, the latter must be weighed more heavily on issues of public interest or where public figures are involved [para. 17].
The Court also considered the actual images and videos questioned by the plaintiff, which included heated exchanges and light fist-fighting with others in the controversial TV talk-show. For the Court, the fact that those images are unpleasant or excessive does not deprive them of constitutional protection, for that would stand on the “subjective tastes or sensibilities” of the court of law in charge of judging them [para. 19]. That would imply a standard of analysis that would be “too malleable and subjective”, that would open the door to arbitrariness and would thus weaken freedom of expression [para. 19].
Finally, the Court observed how courts of law should pay attention to the development of algorithmic systems which recommend content on online platforms. The Court simply mentioned the issue in obiter dicta, and considered that there were many questions regarding the impact of these systems on human rights that remain unanswered.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
By rejecting the right to be forgotten on issues of public interest or involving public figures, the decision expands freedom of expression.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The decision by the Supreme Court of Argentina refuses to recognize a “right to be forgotten”.
Let us know if you notice errors or if the case analysis needs revision.