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On November 23, 2022, the First Chamber of the Supreme Court of Mexico granted an “amparo” (habeas corpus) against the last paragraph article Article 1392 Bis of the Civil Code for Mexico City, which ordered the erasure of publicly available digital information regarding a deceased person unless, in their will, the testator expressed their intention to preserve it. In its decision, the Court found that the challenged portion of the law was unconstitutional since it was contrary to the rights of freedom of expression and access to information. Particularly the Court considered that the terms in which the provision was drafted instigated undesirable self-censorship to avoid potential liability. The Supreme Court pointed out that the so called-right to be forgotten was not regulated in Mexico and thus could not be applied without nuances since, according to the Constitution, public information remained as such regardless of factors such as the time that could affect the very essence.
On August 4, 2021, the Decree amending Mexico City Civil Law was published in the Official Gazette of Mexico City. Among the modifications, Article 1392 Bis was incorporated. This provision ordered the erasure of publicly available digital information regarding a deceased person unless, in their will, the testator expressed their intention to preserve it.
On September 17, 2021, Red en Defensa de los Derechos Digitales, a civil society organization, filed an indirect amparo against the Congress of Mexico City for the enactment, approval and issuance of the Decree and the Chief of Government of Mexico City, the promulgation of the Decree.
On September 21, 2021, a District Judge for the Fourth District Court in Civil Matters in Mexico City asked the plaintiffs to specify whether they were challenging the totality of the Decree or only the last paragraph of Article 1392 Bis of the Civil Code for Mexico City. In response, the petitioner indicated that they only challenged the content of Article 1392 Bis. Once this issue was cleared, the District Judge admitted the amparo. However, On December 8, 2021, the District Judge issued a decision dismissing the amparo. As a result, the plaintiffs filed an appeal.
On June 16, 2022, the Fourth Collegiate Court in Civil Matters of the First Circuit revoked the first instance judgment and remitted the matter to the Supreme Court of Justice. Particularly the Fourth Collegiate Court requested the Supreme Court to analyze the constitutionality of the last paragraph of Article 1392 Bis of the Civil Code for Mexico City regarding the scope of the “right to be forgotten” in matters of inheritance.
On August 26, 2022, the First Chamber of the Supreme Court admitted the appeal.
The main issue for the First Chamber of the Supreme Court of Mexico to examine was whether the regulation established in the Civil Code for Mexico City regarding the deletion of personal data of deceased persons was contrary to the rights of freedom of expression and access to information.
The Court divided its analysis of the case into three tiers. First, it examined the right to data protection and its applicability to deceased persons; second, the constitutional concordance between the right to the protection of personal data versus freedom of expression and the right to free access to information; and considering the previous, it analyzed the regulation established by article 1392 Bis of the Civil Code for Mexico City on the erasure of personal data of deceased persons.
The right to data protection and its applicability to deceased persons
The Court highlighted that, as established by Articles 6 (A) sections II, III and VIII, and 16 of the Constitution, the right to data protection seeks to allow individuals to control the exercise of the access, use, and disposal of their personal information. The recognition of the need for individuals to have control over their personal information is justified on a variety of individual and societal grounds [par. 52]. Among the reasons of an individual nature, he pointed out firstly that the control of personal information allows the development and development of personal autonomy. Likewise, he indicated that the control of information related to a person also has a preventive manifestation with respect to possible patrimonial and emotional damages that may be based on this type of information. There are also social justifications to support the need for control over personal information. Recognizing that technological advances have generated an increasing number of diverse and highly accurate means for collecting information on personal data, the need for control over personal information is also recognized. This collection of data is derived from daily activities of a physical or digital nature which may occur without the free and informed consent of the persons involved and in situations where there is an imbalance of power between the two parties [para.54].
The Court noted that in order to guarantee the full and effective enjoyment of the right to personal data, its nature demands it to be understood in light of current technological developments. The Court pinpointed that since new technologies allow the storage of personal information beyond most spacial and time limitations, it was possible to recognize the applicability of the right to data protection for deceased persons. However, the Court emphasized that considering the right of autonomy, the scope of data protection for deceased individuals could not have the same dimensions as that of the living. Considering the previous, the Court stated that this fundamental right ought to be interpreted either according to the preventive provisions that individuals establish in their will, which would be effective upon their death or in light of the cautionary measures to prevent patrimonial or emotional damages for the interests of family members and heirs [para. 59].
The constitutional balance between the right to the protection of personal data versus the rights of freedom of expression and access to information
The Court remarked that the right to data protection grants individuals a set of prerogatives to control their personal information, regardless of its nature. Notably, the Court stated that the right to data protection covers not only the information produced by its owner but also that created by third parties.
Moreover, the Court explained that the format or medium in which such personal information is conveyed is irrelevant and held that there is no constitutional constraint for the data holders to be able to establish rules on such information by testamentary means preventively. In the Court’s view, the preceding implied that when the content of a publication is within the scope of freedom of expression, the subsequent responsibilities depend, among other factors, on a balancing exercise that takes into account whether the information conveyed in the publication is of public interest; the role played by the data subject in public life; the content, form, and consequences of the publication; as well as the intention of the person in charge of the publication and its dissemination.
While it was clear to the Court that there are several ways in which the rights to data protection and freedom of expression can interact with each other without there necessarily being a material contradiction between their spheres of protection, it noted that there are cases in which the elimination of personal data can impact the exercise of freedom of expression.
Analysis of the regulation established by article 1392 Bis of the Civil Code for Mexico City on the erasure of personal data of deceased persons
The Court recalled that Article 1392 Bis contemplated several scenarios in which the erasure of the testator’s personal information could eventually be permitted, such as when all the testator’s data was stored in public or private electronic records and contained an enunciative list that included images, audio, video, and social networks. Likewise, the Court remarked that through this norm, it was established that the deletion of data could proceed under two different premises, either because the person had ordered so in the corresponding testamentary disposition or, if lacking, it specified a legal obligation for the executor of the will to immediately request the elimination of the deceased person’s personal information before public and private institutions in order to guarantee the so-called right to be forgotten in favor of the author of the estate.
The Court noted that the wording employed in this portion of the article was ambiguous since it did not distinguish between information that had been published and information that had not. Additionally, the Court held that this provision failed to provide the criteria necessary to determine whether the deletion of data was applicable when third-party rights were involved. Furthermore, the Court found that the text supported the existence of an obligation of public and private institutions to eliminate information, implying that penalties could be imposed on such institutions that did not proceed with the deletion of the information.
Regarding the so-called right to be forgotten, which the challenged portion of the statute intended to protect, the Court noted that the expression had been used in the regulatory framework of the European Union, specifically through the EU General Data Protection Regulation (GDPR) and the case of Google Spain v. AEPD and Mario Costeja Gonzalez The Court explained that the so-called right to be forgotten is understood within the framework of the European Union as the right of erasure that individuals have concerning their personal information, including that contained in search engines, when it is considered that such data complies with the requirements set out in article 17 of the GDRP.
However, the Court highlighted that the so-called right to be forgotten was not defined in any national law, regulation, or administrative provision, nor was it feasible to deduce a specific meaning from the literal interpretation of the term. The First Chamber noted that the prohibition of prior restrictions on freedom of expression had been recognized by the Inter-American Court of Human Rights (IACtHR), considering Article 13 of the American Convention in cases of public entertainment only when seeking to regulate their access and in matters regarding the moral protection of children and adolescents. Thus, the Court stated that in light of the IACtHR criteria, any preventive measure implied a restriction of freedom of expression beyond these two particular considerations. Likewise, the Court noted that this so-called right could not be applied without qualifications in Mexico because the Constitution established the presumption that all public information must remain as such, without the mere passage of time being a determining factor in the loss of public interest in the information. Furthermore, the First Chamber underscored that the Constitution did not allow private institutions to conduct surveillance and determine when there is public information since assigning such functions to private entities would be contrary to the provisions of Articles 7 and 14 of the Constitution.
Consequently, the Court held that it should be noted that the reference to the so-called right to be forgotten established in Article 1392 Bis of the Civil Code for Mexico City and the resulting erasure of the personal data of a deceased person, was incompatible with the standards established by the Constitution on the rights of freedom of expression and access to information. Thus, the Court determined that, as formulated by the framework of the European Union, the so-called “right to be forgotten” could not constitute a broad and sufficient justification for the deletion of all types of personal information of a deceased person in the Mexican legal system.
Considering the previous, the First Chamber determined that the analyzed portion of the law was unconstitutional since it established a barrier to public debate, in addition to the fact that it entailed consequences that could inhibit the expansion of public deliberation through digital media, which would be contrary to the social dimension of the rights to freedom of expression and access to information.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
By finding Mexico City’s civil code provision, which ordered that upon the death of a person, all information stored or distributed in digital media related to that person be deleted, unconstitutional, the Supreme Court 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.
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