SPECIAL COLLECTION OF THE CASE LAW ON FREEDOM OF EXPRESSION
Two broad approaches emerged. Around the Costeja decision, many of the so-called “right
to be forgotten” claims emerged with regard to information which affected the reputation of individuals, and that produced a special kind of harm not because it was untrue but because it was
outdated and made easily accessible by the Internet, affecting people when their name were used
as keywords for Internet searches in search engines. After Costeja, a narrower approach sought
not to eliminate the information, but to have it “de-indexed” from search engines’ databases, often
to keep the information available but “disconnected” from the names of the people affected. The
difference between both approaches are often subtle, but are nevertheless important for the scope
of the remedy often determines how the freedom of expression interests involved in these cases
are affected. For instance, a decision that forces a search engine to eliminate a certain website from
its database makes access to said website extremely difficult. But a decision that simply forces a
search engine to eliminate the link between a certain name and the reproached content has a smaller impact on the freedom of expression rights of the website owner. However, as the Argentine
Supreme Court acknowledged in its recent Denegri decision, the possibility of that approach may
have a cascading effect that deeply hinders the rights of users to “search” for information on the
Internet.1
The case-law here discussed moved freely between both approaches and has been hardly consistent. Many cases decided by national courts have had cascading effects within each jurisdiction
2
. The purpose of this paper is to provide a general overview of these judicial trends. Through this
document, the reader will be able to find some of the landmark decisions related to this controversial issue. The case law has been organized thematically according to some of the key topics it
touches upon. The body of the document will be divided in two main sections. First, a brief critical approach on de-indexing will be offered in order to highlight the main problems the practice
presents from the standpoint of freedom of expression standards. This section presents the main
challenges. Some cases discussed thereafter have struck—from our perspective—the right balance
among competing interests, while others have not. The second section will then present the actual
decisions, organized thematically and discussed briefly. The reader can access the decisions themselves and more developed analyses in Columbia’s Global Freedom of Expression database.
1
CSJN, Denegri, Natalia Ruth v. Google Inc. s/ derechos personalísimos, (Jun. 28, 2022), cdo. 12.
2 For a geographical analysis of the case law we recommend visiting the Stanford World Intermediary Map. For an
example of how case law has evolved in a given jurisdiction, see as well the Jurisprudence as a Network project at the
“Centro de Estudios en Libertad de Expresión y Acceso a la Información”, that provides an analysis on the impact a leading case may have on the evolution of national case law, available at: https://observatoriolegislativocele.com/jurisprudencia-intermediarios/.
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