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In brief

On 28 June 2022, the Argentine Supreme Court of Justice (“Supreme Court“), in a unanimous decision, revoked the ruling of the National Court of Appeals in Civil Matters (“Court of Appeals“) that recognized the ‘right to be forgotten’ with respect to certain content linked to the plaintiff’s past.


In focus

The plaintiff filed a complaint against a search engine company ordering to suppress certain websites in which facts linked to the plaintiff’s mediatic past were published when their name was entered in the search engine. The plaintiff argued that this information was harmful, old (happened over 20 years ago), irrelevant and unnecessary, and based their claim on the ‘right to be forgotten’ admitted by the Court of Justice of the European Union in the case Costeja.

Although the First Instance National Court in Buenos Aires partially admitted the plaintiff’s request, instead of ordering to delete the websites, it compelled the defendant to block all links from its search engines as well as any image or video obtained 20 or more years ago, which met certain criteria.

The Court of Appeals confirmed the First Instance Court’s ruling and alleged that the exercise of such right did not mean suppressing the information itself but restricting or hindering its access by traditional means of search. It recognized that, although there was no specific rule sustaining the plaintiff’s claim, the right to be forgotten should be interpreted and analyzed in a restrictive manner, following the rights to privacy and honor. The Court of Appeals agreed with the lower court on making a distinction regarding the content on which the right to be forgotten was claimed:

  1. News that portrayed fight scenes or discussions between the plaintiff and other interviewees.
  2. Content linked to a criminal investigation of the so-called ‘Coppola‘ case in which the plaintiff was a party.

Regarding item 1, the Court of Appeals argued that blocking its access was justified as it was not of public interest. On the contrary, regarding item 2, the Court of Appeals argued that its linkage with matters of public interest was clear and unquestionable, thus, its access should not be blocked.

The defendant appealed said decision with the Supreme Court and stated that:

  1. The ruling violated the constitutional right of freedom of speech by admitting an unreasonable limitation to the defendant’s activity and indiscriminate censorship of lawful content of public interest and linked to public figures.
  2. The ruling recognized a supposed right to block access to lawful content, assuming that the mere passage of time led to a loss of interest in accessing it or because it may cause discomfort.
  3. In this case, there was no real impact on the right of honor or intimacy that would justify the impediment to access public and relevant information.
  4. There is no law in Argentina that establishes the right to be forgotten for certain events from the past.
  5. The distinctions made by the Court of Appeals regarding the different types of content were arbitrary.

Briefly, the Supreme Court argued that the key issue is to determine whether a public person involved in a matter of public interest has a ‘right to be forgotten’, allowing them to request their name to be removed from certain content that involves them, or if, on the contrary, the ruling ordering the deindexation of the requested information unduly restricts the right to freedom of speech.

The Supreme Court did not find a legal or constitutional basis supporting the plaintiff’s claim to justify sacrificing the general interest of access to information by preventing access to the public information involved. Thus, the Supreme Court stated that the content under analysis is protected broadly by freedom of speech. Moreover, it explained that the plaintiff is still a public person and that they were involved in an issue of public interest, maintained even today. Therefore, the Supreme Court upheld the complaint, declared the extraordinary appeal admissible, revoked the appealed judgment, and rejected the claim.

Notwithstanding the ruling, we deem it important to highlight two issues raised by the Supreme Court, which will most likely be discussed in the future:

  1. Algorithms used by search engines. Concerns were raised regarding the need for algorithms used to be more understandable and transparent for users.
  2. Preventive protection. It was stated that, exceptionally, requests to delete or block harmful content could be admitted to avoid or prevent future damage.

To access the Spanish version click here.

Author

Guillermo Cervio is a partner in Baker McKenzie’s Buenos Aires office. With more than 25 years of experience, he has been consistently recognized as a foremost practitioner in his field. He served as the coordinator of the Information Technology & Communications Group from 2008 to 2016. Guillermo has authored books and articles on legal matters. He has been awarded for his book “Derecho de las Telecomunicaciones” by the National Academy of Law (Mención de honor, 1998) and Austral University (Premio tesina,1997) and for his paper filed in the IX National Congress on Corporate Law (Tucumán, 2004). He has been a professor in universities including the University of Buenos Aires, Austral University, Palermo University, Catholic University and CEMA. Guillermo has been awarded with Folsom fellowship granted by Center for American and International Law, Dallas, US in 2003.

Author

Martín Roth is a partner in the M&A, Real Estate and TMT practice groups in Baker McKenzie's Buenos Aires office. Martín has more than 13 years of extensive transactional domestic and international experience, focusing on the real estate and TMT industries. Prior to joining Baker McKenzie, he worked as a trainee lawyer on the Corporate, Banking/Finance and Litigation areas with a local law firm in Argentina. From 2007 to 2012, he worked in Baker McKenzie's Buenos Aires office. From 2013 to 2016, he worked as an independent attorney at another law firm. Martín rejoined the Buenos Aires office in 2016 and was named partner in July 2019.

Author

Sofía Requejado is an Associate in Baker McKenzie, Buenos Aires office.

Author

Valentina Salas is an Attorney at Law in Baker McKenzie Buenos Aires office.

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