The right to be forgotten and digital news archives
The Civil Chamber of the Supreme Court has issued a judgment imposing obligations on the media with respect to protection of the digital right to be forgotten.
The case involved two individuals who had asked El País to delete their personal data from an article published in the newspaper’s digital archives which referred to events that took place in the 1980s relating to drug trafficking and drug dependence.
Implications of the judgment
- According to the judgment, media outlets are considered “controllers” of the personal data contained on their websites and, as such, they are obliged to respect data protection legislation and obligations regarding the protection of fundamental human rights (such as privacy or reputation).
- The Chamber, citing the European Court of Human Rights, distinguishes between the informative role played by media outlets in broadcasting or publishing current news items, classifying this role as primary and the role they play when managing and publishing digital news archives. The latter is classified as a secondary role and, on that basis, the Chamber holds that Member States have greater discretion to impose restrictive measures on news archives.
- Most importantly, the Chamber considers that media outlets that manage digital archives must use exclusion protocols (robots.txt or no-index instructions) to prevent old news articles in the archives reaching general search engines (such as Google, Yahoo or Bing), when the information lacks public interest.
In this regard, the judgment stresses that public interest is not to be confused with gossip mongering or defamation. Pointing to several authors, it states that what is important is not so much the “interest of the public” (considering that a large part of the population is interested in the trials and tribulations of others, even those in the distant past) but the “public interest”, that is, the interest in reaching an informed opinion on matters that are important for the functioning of democratic society.
Specifically, the judgment states that media outlets will have to apply exclusion protocols when certain circumstances are met:
– When the claimant is not considered to be a public figure or does not have a public profile. In order to conceptualize what is meant by public figure, the Chamber cites Resolution 1165, from 1998, by the Parliamentary Assembly of the Council of Europe on the right to privacy, stating that public figures are “persons holding public office and/or using public resources, and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain”.
In the case of non-public figures, as in the case of the plaintiffs, while the news item was of interest when it was published, over time the processing of the data it contained became inadequate, irrelevant and excessive, and ceased to be of interest.
– When the news item lacks historical interest. The Chamber does not explain what it understands by historical interest, so we must look to examples given in legislation in order to ascertain what is meant.
Specifically, article 9 of the Data Protection Regulations states that in order to assess whether there is historical interest, the legislation applicable in each case must be taken into account and, in particular, the provisions of Law 12/1989, of May 9, 1989 regulating public statistics, Spanish Historical Heritage Law 16/1985, of June 25, 1985, and Law 13/1986, of April 14, 1986 on Promotion and general coordination of scientific and technical research, and their respective implementing regulations must be borne in mind, as well as regional legislation on these subjects. Nonetheless, the Spanish Data Protection Agency or, where applicable, the regional data protection authorities, may, following a request from the data controller and pursuant to the procedure established in the Regulations, agree to fully maintain certain data, in view of their historic, statistical or scientific value, in accordance with the above-mentioned laws.
Therefore, in practice, assessing whether there is historical interest in the context of the right to be forgotten does not appear to be a quick or easy process.
- However, the Chamber does make some positive rulings for media outlets. It states that media outlets cannot be expected to clean up the data at their own initiative, because this would be a disproportionate sacrifice of the freedom of information in view of the many variables that must be taken into consideration and the vast amount of information processed in digital news archives.
This therefore means that media outlets will have to act once claimants have contacted them, and not before.
- The Chamber also ruled that media outlets that manage archives are not under the obligation to modify the news item in the archive. It considers that digital archives are protected under the right to freedom of information, since they satisfy a public interest in accessing the information, and are protected under article 10 of the European Convention on Human Rights. Indeed, citing the European Court of Human Rights, it states that “it is not the role of judicial authorities to engage in rewriting history”.
Consequently, media outlets cannot be obliged to cancel or alter news items and a request to remove an individual’s name from an article published in the news archives would be inadmissible.
- In line with the above, the Chamber also considers that media outlets that manage news archives are not obliged to adopt technical measures designed to de-index personal data from their internal search engines, since it deems that this would be a disproportionate sacrifice that is contrary to article 20.1 of the Spanish Constitution. The Chamber holds that these types of internal search engines do not offer a “complete profile”, as general search engines do.
For further information, contact Ignacio González Royo
Garrigues Intellectual Property Department