Content Regulation / Censorship, Privacy, Data Protection and Retention
Maurício Marinho v. PPS
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The Civil Court of Appeals of 7th Turn declared that Uruguayan courts do not have jurisdiction to decide on a case in which Google applied the right to be forgotten according to European Law against a local media outlet and a journalist. Sudestada, a news portal, filed an Amparo against Google for deindexing an article in which the journalist, Fabián Werner, reported on the involvement of two Uruguayan law firms in a money laundry scheme revealed in the Panama Papers. Sudestada and Werner claimed the measure violated their rights to freedom of expression and due process. Google argued that the decision was taken to comply with a request from a Spanish citizen grounded in the European privacy framework, limited to that jurisdiction, and therefore the content was available to Uruguayan users. The Court considered that the content was not removed from the internet globally but only deindexed by one search engine in a specific region, to conclude that the deindexing did not entail a restriction to freedom of expression or press. The Court found that the defendant acted accordingly to a foreign law and that Uruguayan courts are not competent to evaluate the legitimacy of the decision or the process. For this reason, the Court concluded that plaintiffs should look for relief in Spanish courts.
In June 2017, Mr. Fabián Werner published a news story entitled “Uruguayan Law Firm link is strengthened in the plot of Spanish corruption” in the online news site Sudestada. The article revealed a link between two Uruguayan law firms in a money laundry case under investigation in Madrid, Spain, and was part of a series of pieces about the revelations from the Panama Papers scandal.
Four years later, in November 2021, Sudestada received an email from Google notifying them that the link to the story had been reported for violating the European privacy law. The email did not include any reference to who requested the removal of the content, or the infringing aspects. Due to the violation, Google decided to deindex the link from the search results within European territory.
Sudestada and Fabián Werner filed an Amparo against Google for violating their right to freedom of expression and due process by deindexing their article from the search engine. They asked the company for the immediate restoration of the link and to take active measures to avoid future deindexing of Sudestada’s content.
Google argued that they decided to deindex the link only to comply with the European General Data Protection Regulation (GDPR). The decision was made due to a right to be forgotten application from a European citizen. The content was only excluded from the results in the countries where the Regulation is applicable and therefore remained available to Uruguayans looking for the information. For this reason, there was no harm or infringement to access of information in Uruguay. The legal framework relating to inter-jurisdictional issues does not permit Tribunals to act if the harm occurs in a foreign jurisdiction. In this case, there were no legal grounds to apply the Uruguayan norms.
The First Instance Civil Court of 20th Turn rejected the case because of the lack of jurisdiction of the Uruguayan Tribunals. Google’s decision was lawfully grounded in the GDPR and the Organic Law 3/2018 of Data Protection and Guarantee of Digital Rights from Spain. Therefore, the Court concluded that Spain’s Tribunals are the only ones with sufficient authority to review Google’s actions. There are no legal grounds in the Uruguayan international private law legislation to assert jurisdiction over the liability of Google in this situation. As the content was available to Uruguayan users, no harm could be proved in this territory.
Sudestada and Mr. Werner appealed the decision. After the appeal, IFEX-ALC (International Freedom of Expression Exchange – Latin American and the Caribbean) filed an amicus curiae outlining the public interest of the case and the regional significance of guaranteeing the right to freedom of expression when confronted with the right to be forgotten.
Judge Ettlin wrote the opinion of the Civil Court of Appeals of 7th Turn.
The main issue before the Court was whether Google violated the freedom of expression and due process rights of an Uruguayan news site and journalist by deindexing the link to a story based on a right to be forgotten application in Europe.
Sudestada and Mr. Werner filed an Amparo claiming protection of their rights to freedom of expression and due process. According to them, Google’s actions violated their right to freely express themselves and the collective right to access public interest information. Furthermore, Google took the measure without prior notification and without the minimum guarantees to exercise their right to defense.
The Plaintiffs argued that the right to be forgotten is not compatible with the Inter-American Human Rights Framework. The limitation imposed by the application of the European rule would not be compatible with Article 13 of the American Convention. Even if it is justified by the European Regulation, Google’s procedure would be considered private censorship under the Uruguayan and Latin-American law. According to the United Nations Guiding Principles on Business and Human Rights, private companies must incorporate human rights into their procedures, so it is not valid to take such measures based on a justification that they are a private company.
They further argued that Google did not comply with the due process to restrict access to information according to the American Convention on Human Rights (Three-part test). The takedown was not legal, proportionate, or necessary. In this sense, the Plaintiffs noted that Special Rapporteurs for Freedom of Expression of the Organization of American States have highlighted the problematic outcomes of when the right to be forgotten is applied to other jurisdictions. Private mechanisms or policies that limit the circulation of news should be carefully tailored, which they asserted, was not proven in the case. Google is not a mere intermediary but an essential actor for the diffusion of news and information, highlighted by the fact that it has a monopoly in the search marketplace.
The Plaintiffs also claimed that their right to freedom of expression had been violated even if the restriction was only implemented within European territory. Their main activities are located in Uruguay, and so the first instance ruling imposed an unlawful limit to freedom of expression rights which has no borders, especially on the internet. In this sense, the acceptance of the lack of jurisdiction exemption imposes an unfair burden and denial of justice to them as they would have to go to Spain to defend their rights, with all the time and costs implied.
The second claim made by Sudestada was that their due process rights were violated. The decision was taken without prior notice and without information identifying the infringing content. The web forms provided by Google to appeal the decision did not provide sufficient remedy because there is no guarantee that Google will answer or even review the decision. Sudestada asserted that the decision does not comply with the minimum transparency requirements to exercise their right to defense: they were not informed who asked for the takedown, where it originated, or what was the scope of the measure. Hence, they argued that there was no proof that Google correctly balanced the human rights involved in the case.
The Plaintiffs claimed that the facts could not be analyzed on their own but must be understood as part of a broader context of technological and legal mechanisms employed to silence the media. Two weeks before receiving the privacy violation email, Sudestada had received another notification from Google informing them of the deindexation of a story because of a copyright infringement. According to the email, the piece, which was also related to the Panama Papers and a big local law firm, had been reported in the United States for violating the Digital Millennium Copyright Act (DMCA). The email provided a link to the Lumen Database listing the name of a fake applicant and no other information about what was the infringing content. The Plaintiffs argued that the alleged violations and take down request were merely an attempt by anonymous sources to hide highly sensitive information about corruption from the public. Further, as a free press is one of the pillars for democracy, Google’s actions posed a threat that should be revised.
In conclusion, the Plaintiffs argued that Google acted unlawfully, and based on the Inter-American human rights standards and UN Guiding Principles, Uruguayan Courts have a duty to intervene when there is a clear and flagrant violation of human rights as in this case.
Google defended arguing that the content had been always available to Uruguayan citizens. In this sense, no harm could be proven. The story referred to two Uruguayan law firms so it is likely that the intended public has access to the link.
They argued that the decision was made only to comply with the European Data Protection Framework due to a right to be forgotten application from Spain. Uruguayan courts have no power to review decisions taken outside Uruguayan borders, especially when their actions are clearly legitimate under European Regulations. Considering that the right to be forgotten is an enshrined right in the GDPR, the deindexation by a search engine cannot be deemed flagrantly illegitimate as the Plaintiff claims. If the Uruguayan Courts decided to apply the European rules, they would arrive at the same conclusion.
The Court affirmed the first instance ruling, considering that there were no legal grounds to accept the jurisdiction of Uruguayan tribunals in the case.
First, the Court began analyzing the deindexation measure taken by Google. The Court stated that “the fact that a link is removed from results listings does not mean that the URL or its content is removed from the Internet. All for the simple fact that the search engine does not host the content of the site or Internet webpage. In those cases, only the URL and its link do not appear in the list or directory, or access through the search results page is not allowed; but this does not prevent the information from being accessed by other means, or through other different search engines. It should be noted that although Google is, (…), one of the most used search engines globally, it’s not the only one; there are also others. In other words, the URL in question may well appear in the listings of other search engines, regardless of whether the Google engine has inhibited, blocked, or removed it from its listings or indexes. And since the information due to deindexation does not disappear from the Internet, it can be found in the worst-case scenario having the name of the URL, unless it has been blocked by some regulatory authority.” The Court moved to differentiate the blocking from the deindexation measure: “De-indexing (removal of information about a website from a search engine listing) is one thing; another is Internet blocking or deletion of the website (which is not done by the search engine, but through a regulatory authority) of a publication, a hypothesis beyond this case” [p. 5].
For this reason, the Court questioned whether there had been a violation of the right to freedom of expression of the Plaintiffs. “[I]t is observed that the right of the actors […] has not been affected in a transcendent way, nor in a manifestly illegitimate way. Because the search engine Google or the company GOOGLE LLC did not delete the URL involved from the Internet, nor its contents, nor did they unsubscribe it, nor did they make it disappear from the Web. From the point of view that Google does not have, nor does it eliminate or block websites or their content, but simply does not include them or restrict their access in its private list of search results, it cannot be said that the deindexation of a URL supposes an activity of censorship, nor that it restricts freedom of expression. It is highly questionable then, at least within the superficiality of the Amparo and in the exposed perspective, to postulate deindexation as an activity of restriction of freedom of expression or the press” [p. 5]. For this reason, “There can be no talk, within these boundaries, of censorship or undue limitations on freedom of information or disclosure, or freedom of expression” [p. 7].
The Court followed the reasoning stating that no harm in the country could justify giving Tribunals’ jurisdiction over the case. “In this case, no one’s right has been violated in Uruguay, because deindexation has not operated in it; and aside, the rights of the claimants have not been seriously, concretely, and manifestly affected” [p. 12]. Since no damage was done in Uruguay, Uruguayan legislation could not be applied.
Furthermore, the Court considered that Google has no residence in Uruguay and therefore could not be brought to Uruguayan jurisdiction. “Google LLC has its main administration in the United States (…), not having any establishment, branch or form of commercial representation in our country, adding that the doubtful deindexation had not been practiced in Uruguay (…) and that rules out the intervention of the Uruguayan justice” [p. 10].
The Court concluded that the harmful act occurred exclusively in Europe so the damage could only be claimed in those jurisdictions. “Under the pretext of a supposed protection of Human Rights, the Uruguayan national judges cannot, without an express enabling Law (…) exercise an international gendarmerie on how these should be applied, nor make it bypass to the sovereignties of other countries in the matter” [p. 8].
Finally, the Court considered that there was no evidence of the alleged violation of the due process norms. “There is no evidence, nor have the complainants demonstrated, that the European courts cannot guarantee due process when it comes to wanting to judicially challenge the deindexation verified in their region” [p. 11].
In conclusion, the Civil Court of Appeals of 7th Turn rejected the Amparo for lack of jurisdiction of Uruguayan tribunals. According to the Court, the case is not linked to Uruguay, since it operated under European and Spain’s legislation and in the European territorial sphere, and the deindexation did not cause negative effects for Uruguay. The fact that the content was not deindexed from Google’s Uruguayan version led to the conclusion that no harm could be proven. The decision was lawfully made according to a foreign legal framework that cannot be reviewed under the international private law rules of Uruguay.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Although the Court rejected the case for lack of jurisdiction, the judgment delved into substantial elements of the right to be forgotten and intermediaries’ liability that include restrictions to the freedom of expression of Uruguayan citizens.
Uruguay does not recognize the right to be forgotten in its national data protection law and its application under the Inter-American Human Rights Framework is controversial. In this sense, the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights has said: “(I)nternational human rights law does not protect or recognize the so-called “right to be forgotten” in the terms outlined by the CJEU in the Costeja case. On the contrary, the Office of the Special Rapporteur believes that the application to the Americas of a private system for the removal and de-indexing of online content with such vague and ambiguous limits is particularly problematic in light of the wide regulatory margin of the protection of freedom of expression provided by article 13 of the American Convention on Human Rights.” (Standards for a Free, Open and Inclusive Internet, 2016, p. 52)
According to the Rapporteur, de-indexing measures make “the information more difficult to find and renders it invisible. Both (blocking and de-indexation) have a limiting effect on the right to freedom of expression because they restrict the possibility to seek, receive and impart information and ideas regardless of national frontiers.” (Id. p. 53)
However, the Court of Appeals found that it is highly questionable to affirm that deindexing content supposes a restriction to the freedom of expression. The Court recognized that, according to the GDPR, freedom of expression and information limit the right to be forgotten. However, the Court stated that “(…) this freedom is not affected in the particular case that concerns us, because the deindexation of the information in the search engine Google does not mean that the URL has been blocked or removed from the ‘web’ (…)” [p. 6]. In this way, the Court limited the exception to freedom of expression in the GDPR only to those cases where content is blocked or removed. According to the Court, deindexation is not considered a violation of freedom of expression, nor does it violate the Uruguayan human rights norms.
Secondly, the Court understood that, as the content was available to Uruguayan users, the harm only occurred in Europe. This consideration imposes a limit based on borders to the freedom of expression of the Plaintiffs. The American Convention defines the right to freedom of thought and expression as the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers (art. 13). However, the Court did not consider the collective dimension of the right and the limitation it entails to the circulation of the story.
This is the first case in Uruguay that analyzes the responsibility of large internet companies, setting a regressive precedent by rejecting the jurisdiction of companies without residence in the country. The judgment discourages future claims against internet platforms even though the persons find themselves harmed due to foreign laws.
According to the Court, the Plaintiff should have sought relief in Europe, significantly increasing the litigation costs in time and money. This could have a chilling effect on other journalists and human rights activists to bring claims when they find their rights, especially freedom of expression, violated by an international company that operates virtually in the country and has no affiliates or subsidiaries in the territory.
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