Since the EU Court of Justice ruled to uphold and codify the Right to Be Forgotten last May, Google has received  over 91,000 requests for removals, roughly half of which were granted. Free expression activists fear that the decision will open the door for corporate and government powers to remove unsavory information about themselves from search results. And the fact that it will be incumbent on tech companies like Google and Yahoo to make these decisions is no small matter — taking this decision out of the hands of the judiciary is a serious blunder in the field of online rights.
Conversations among the Global Voices members and across the digital rights space inspired our community to ask our colleagues — Internet law experts around the globe — to comment on the ruling and describe what impact it has had on policy and political debate in their countries since it was issued.
In this third installment in the series, Ramiro Alvarez Ugarte, formerly a senior attorney at the Association for Civil Rights (Asociación por los Derechos Civiles) in Buenos Aires, Argentina and now a PhD student at Columbia University describes how the decision might impact the strong trend towards defamation lawsuits among Argentine celebrities and public figures.
Are you familiar with EU case on the “right to be forgotten”?
Yes, I am. The case itself seems, to me, to be rather broad and open-ended in the following sense: It does not clarify when the RTBF will apply and when not, so instead of solving an issue it opens up the door for further litigation in which lower courts will do the work of shaping the RTBF, something the EU court has not done.
The European Court has not provided clear definitions of when the RTBF will apply and when a public interest analysis will prevail. Hence, lower courts who wish to follow the case-law of the European Court will face the tough questions that hasn’t been answered yet.
The most important question for me is, when does public interest trump the RTBF? It is not an easy question to answer. Should a public official who has been punished for some wrongdoing be able to have that information removed from the Internet because he has already paid the penalty or served the time? Should it matter whether that public official is now a private person, still holds public office or is running for office? Could a person who is running for public office eliminate from the web things like past traffic tickets? These are the kinds of pivotal questions that will be answered by lower courts.
Has there been local discussion and debate on the implementation of RTBF? Have their been local court cases?
There has not been, so far, a RTBF case in Argentina. However, there is a lot of litigation on intermediary liability, basically legal claims presented by celebrities against Google and Yahoo complaining about the results they get when they Google themselves. They accuse the search engines of defamation and the use of their image without their permission by third-party websites with sexual content.
In the context of those claims, the EU decision was received as a victory by celebrities’ lawyers. We were quite concerned about it as the decision came out just a few days before the Supreme Court held a public hearing on a landmark case on the issue in Argentina.
In Rodríguez v. Google Argentina, professional model Belen Rodriguez has claimed that these search engines are violating her right to her own image and that they are engaging in defamation, as her name is linked to web pages with sexual content. This case is just one in many: Lower courts in Argentina have received many similar claims, usually advanced by celebrities represented by the same lawyers. And they have been somewhat successful, getting damages and injunctions against the search engines if they don’t exclude their names from search results. The problem with these claims is that it punishes the search engine over content produced by a separate party. We at ADC believe that intermediaries should not be in charge of any kind of censorship nor should they be liable for content they did not produce.
Sadly, the partial success obtained in Argentinean courts by celebrities so far has resulted in these intermediaries being asked to engage in private censorship. They do so through liability: If for-profit companies like Google are going to be liable for content produced by third parties, then they have a huge incentive to engage in censorship. If they are public companies, it could even be argued that they are obliged to take necessary measures to prevent avoidable financial loss. A court should not impose this kind of burden on intermediaries. The Supreme Court of Argentina has a chance to make things right in the Rodríguez case and we are confident it will do so, following the long-standing, protective freedom of expression case-law in Argentina, which should grant some kind of immunity to intermediaries. But the EU case is certainly an argument for the other side.
Do you anticipate any threat to the online public sphere once it is implemented?
I believe the RTBF is troublesome from the point of view of public debate. Who is going to decide what has to stay and what needs to go? That’s the basic question that is going to be —I think— shaped by lots of litigation everywhere, where old freedom of expression principles will come into play, specially on the issue of public interest, public officials, and so on. The not-so-clear cases will be tougher though and I’m sure many legal battles are to come in the future.
The decision does not provide clear categorical definitions on when the RTBF does and does not apply. So public officials may or may be not capable of making claims under the RTBF. I can think of cases where such claims could be successful, e.g., if a low-ranking public official wants to remove embarrassing information that has nothing to do with his office versus cases where those claims would not be successful. Or if a candidate running for election wanted to eliminate information on past wrong-doings. However, these cases themselves are not that clear and their resolution depends on the way local freedom of expression criteria plays out when applied to this new right. It’s kind of unpredictable — the actual outcomes remain to be seen.
How can policymakers strike a balance between individual right to be forgotten and free flow of information?
It is difficult, but not impossible. I think the guiding principle should be freedom of expression case-law. In the US the actual malice test involves public officials or private individuals who have voluntarily joined public debate. This is a proxy for dealing with public interest cases without getting into the thicket of producing a definition of what public interest is.
The actual malice  doctrine is a test applied by the US Supreme Court on freedom of speech cases which involve public officials or private individuals who have willingly entered public debate. It basically says that a journalist or a media outlet should not be liable for false information unless they published knowing that the information was false or with reckless disregard of whether it was false or not. It comes from New York Times v. Sullivan in 1964 and has been, since then, shaped by other decisions.
This public official requirement is, however, a proxy for covering public interest cases. But because public interest is not a concept which is easy to define, US courts have traditionally used the category of public official to define public interest cases: Whether a public official is involved in the news-story or not is a much easier question to answer than whether the news itself is of public interest. Latin American courts have not followed this approach and have taken the actual malice test in its raw form: It applies to public interest cases, and the definition of what is and what is not of public interest is decided on a case-by-case basis.
The RTBF cases must be decided on a public interest test as well: If the information is in the public interest, it should remain public. If it is not, the RTBF may apply. However, the actual malice test only applies to information that is false, when the RTBF applies only to information that is true. What I am thinking is that one possible way of dealing with this is to extend the actual malice doctrine and criteria to cases where the information is true, not for liability but for the elimination of said information from relevant records. This step can be taken, but it would restrict the deliberative sphere freedom of expression wants to protect. But I believe this is an unavoidable consequence of the RTBF as crafted by the European court so far.
Want to lend your ideas to the conversation? We invite experts and interested individuals to answer these questions for us — please feel encouraged to respond to this post in the comments section or to send your thoughts to us at advocacy [at] globalvoicesonline [dot] org. We look forward to publishing them and continuing the conversation.