SPECIAL COLLECTION OF THE CASE LAW ON FREEDOM OF EXPRESSION
reversed the rulings of the Court of first instance and of the Court of Appeals, by ruling that in
these cases it is necessary to “assess whether it exists a concrete and current public interest in
mentioning the elements identifying those involved in such events”. The Court argued that a
story can maintain its public interest when the persons referred to in it are currently of interest.
If such interest no longer exists, the Court argued, the right to confidentiality must prevail. The
Court sided with the latter assessment: it held that any re-evocation of the past without connection to current events must be done by anonymizing the person involved when this person does
not play a relevant public role.
The Constitutional Court of Spain in A&B v. Ediciones El País considered that de-anonymization in the original news items was not necessary, and could be regarded as disproportionate, but it held that de-indexation was a sufficient remedy for a claim made by a handful of
Spanish citizens who had been convicted of drug offenses in the 1980s and who had brought
an action against Spanish newspaper El País to challenge the re-publishing of articles from the
1980s about their convictions on the newspaper’s online portal. In Graziani v. El Mercurio the
Supreme Court of Chile applied the “right to be forgotten” doctrine and ordered the El Mercurio
newspaper to delete all digital information regarding Mr. Graziani’s criminal case. Aldo Graziani filed a writ of protection and asked the Supreme Court to order El Mercurio newspaper to
delete a 10-year-old news article about a criminal proceeding against him. He alleged that the
news article violated his privacy and human dignity and impeded his social reintegration. The
Court reasoned that because the article had been published a decade ago, the right to freedom
of expression had to give way to the right of social integration and human dignity. In so doing it
said that foreign jurisprudence had developed several criteria in order to balance these competing rights, one of them being the time factor. The Court said this does not mean that information
will be deleted from every record but that access to that information will only be available from
its original sources to those with real interest in knowing it and with a specific purpose- i.e. research purposes.
In Ren Jiayu v. Beijing Baidu Netcom Technology Co., Ltd., Beijing’s First Intermediate People’s Court held that the right to personality, as guaranteed by China’s Tort Law, offered protection
to a person’s right to privacy in a similar way to the “right to be forgotten”. The case concerned
Ren Jiayu, who requested that the Haidian District People’s Court order a Chinese search engine
to remove “related search” suggestions that he thought harmed his reputation and caused him to
lose work. The Court accepted that one could be granted the “right to be forgotten” and have information de-indexed from search results provided he/she had a legitimate personal interest that
needed to be protected. In this case, Ren Jiayu failed to satisfy this test since the information he
wanted to de-index was still relevant to his current occupation. Similarly, in Jurandir v. Globo, the
Brazilian Superior Court of Justice found that the right of information and freedom of the press
(Brazilian Federal Constitution “BFC”, Article 5th, IX) is limited by certain protections of the
individual (BFC, Article 1st, III), including the inviolability of privacy, intimacy and image (BFC,
Article 5th, X) in the context of the “right to be forgotten”. The Court used this reasoning to find in
favor of Jurandir Gomes de França whose image and name was used in Globo’s television special
16
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos