On March 16, 2021, the Federal Civil and Commercial Court – Chamber III partially upheld a first instance ruling, recognizing the “right to be forgotten” and, at the same time, its limitation in the public interest.
In terms of the facts, the plaintiff had sued a famous Internet search engine because, when the plaintiff’s name was entered into the search engine, the results referred to websites that claimed that the plaintiff had been convicted of defrauding a client and sentenced to two years’ suspended imprisonment and four years’ disqualification from practicing his profession, and that he had subsequently he had been pardoned by the president-elect at the time.
As a result, the plaintiff filed a lawsuit seeking the removal of these websites on the grounds that they were offensive and contained false information, since Chamber I of the Criminal Cassation Chamber had overturned the sentence referred to on the sites.
The decision of the court of first instance was appealed by both parties. The Chamber then partially upheld the ruling after analyzing two highly relevant points: 1) The responsibility of Internet search engines and 2) The right to be forgotten on the Internet.
Regarding the first point, it recalled the ruling of the Supreme Court of Justice of the Nation in the well-known case “Rodriguez, María Belén v. Google Inc.” regarding freedom of expression that protects Internet search engines and the absence of control over the content of publications made by third parties, for which Internet intermediaries should not be civilly liable.
However, it is interesting to mention the Chamber’s analysis of the active or passive stance that search engines may take, and how this may affect their liability.
With regard to the passive stance—mere intermediary—it is crucial to establish whether the search engine had actual knowledge of the illegality of the content of the publication. In other words, if, having had actual knowledge of it, it failed to take measures to remove or block such content, it would be allowing the harmful act to continue over time and could therefore be civilly liable.
On the contrary, if it is the search engine itself that modifies, edits, or creates content—an active role—that causes damage to a third party, it would be acting unlawfully and could be liable.
Regarding the second point, the Chamber referred to the “right to be forgotten” as the right that grants the interested party the possibility of requesting Internet search engines to remove or block certain websites that contain information or personal data that is no longer necessary for the purpose for which it was processed, or because of the time that has elapsed, or because it is inappropriate, irrelevant, or outdated.
However, like any right, it is not absolute. Its limit lies in the public interest, i.e., it may be that the information is irrelevant or unnecessary, obsolete, etc., and causes harm to the data subject, but at the same time, it is part of the historical computer heritage and is of public interest.
In this case, the Chamber considered that the plaintiff had had a significant media impact in the 1990s, so although the information contained on the websites was current at the time it was published and is now outdated, the fact is that it is of public relevance. Therefore, there were no grounds for depriving the public of the right to access such information.
In conclusion, although the Court recognized the right to be forgotten as such, it understood that removing certain suggestions from the Internet could imply an act of censorship, which in principle is presumed to be unconstitutional, and that it would contradict the function and importance of the defendant as an information search engine.
