National Appellate Court understands freedom of information prevails over right to be forgotten

Tuesday, 14 of April of 2020

*By Juan Manuel Fajardo

Freedom of information prevails over the right to be forgotten. This is how clear the Administrative Chamber of the National Court (the “Court”) has been in an interesting and innovative ruling issued on March 6, 2020, in which the Court rejected the obligation of the technology giant Google to delete various links that redirected to several news concerning an accusation of sexual abuse against a psychologist, since the information was related to his profession.

In any case, the Administrative Chamber, in a clear wink to European jurisprudence, established Google's obligation to place the link to the news of his acquittal in first place, which was ordered by the search engine with number 9 in its list of natural results. In this case, several pages that redirected to web content detailing the criminal acts were indexed above, despite the fact that the interested party had finally been acquitted of the charges.

The decision was handed down regarding the appeal lodged by Google against the decision of the director of the Spanish Data Protection Agency (AEPD) which granted the request of the psychologist, who asked for the immediate removal of ten links that redirected to various news that appeared when his name was typed in the search engine. The AEPD ordered eight of the ten links to be blocked because the information was considered obsolete.

Google appealed the ruling arguing that the information indexed was in the public interest, which access and disclosure was protected by freedom of expression. Furthermore, it was considered that the information was current and that fact should prevail over the right to the privacy.

In its judgement, the Court weighs up fundamental rights and competing interests to conclude that the right to freedom of expression and information should prevail in this case. Based on the doctrine set out by the judgment of the Court of Justice of the European Union of 13 May, 2014, the Court explains that "as a general rule, the rights of the person concerned to have information concerning him no longer be linked to his name by a list of results displayed following a search made on the bases on his name must prevail".

But according to such doctrine, the judgment recalls that this general rule ceases if, for specific reasons, such as the role played by the person concerned in public life, interference with his fundamental rights is justified by the overriding public interest in having, as a result of such inclusion, access to the information concerned.

In this case, since it was a person who was carrying out a professional activity at the time of the reported events, the Court held that "there is a legitimate interest of Internet users to have access to such information, which has been published in the local press".

For all these reasons and since the truthful content of the information linked, the vicissitudes of a person dedicated to the professional activity and the short time that has passed since the events took place, the Court finally concludes that Google processed data lawfully so “the information continue to be necessary in relation to the purposes for which they were collected or dealt with”, although, in this case, Google has to restructure the list of his search result in order to reflect, as a priority result, the news of the acquittal of the interested party.