Thursday, 7 of February of 2019

In its judgment of 11 January 2019, the Supreme Court has confirmed the application of the right to be forgotten with respect to information that becomes inaccurate.

The underlying controversy raised before the Supreme Court ("TS") by the company Google relates to the right to be forgotten exercised in relation to certain information that echoed the sanction imposed on a forest guard who participated in an illegal hunt in the year 2007.

The sanction was subsequently reversed by the competent Court ("TSJ"), bringing forward the exercise of the right to be forgotten so that the referred search engine removed from the list of results associated with the name of the affected person news on the said hunt.

In its judgment, the TS blesses the weighting carried out by the lower Court between the rights in dispute (right to information vs. right to the privacy), in attention to the relevant circumstances, in particular with regard to the lack of accuracy of the substantial content of the news (asserting that the hunting lacked due authorization), as revealed by the subsequent resolution by the TSJ.

On the other hand, the TS downplays the public official character of the person concerned, because it was not accredited that he enjoyed a special notoriety in his region, and furthermore because the object of the news had nothing to do with the exercise of his duty but rather with the reserved sphere of his leisure time.

Although the cassation appeal was heard under the former data protection legislation, the TS concludes its reasoning in favour of the right to be forgotten by invoking article 93 of the current LOPD that expressly recognizes the right to request search engines the withdrawal of those results that become inadequate, inaccurate, etc. over the time.