The “right to be forgotten” by an ex-footballer is denied because the freedom of press prevails

Sunday, 15 of December of 2019

Post prepared by Lucia Saldaña

The right to be forgotten, recognized by the Judgment of the Court (Grand Chamber) of 13 May 2014 and whose scope was extended by Article 17 of General Data Protection Regulation (GDPR), may on some occasions collide with the right to freedom of expression and information and this is precisely what happens in the Judgment of the Spanish National Appellate Court of 20 September 2019 (ECLI: ES:AN:2019:3483), in which freedom of the press is deemed to prevail -when certain information about the complainant's public projection is published - against the right to protection of personal data of the applicant, who has been denied his right to be forgotten.

This Judgment originated from the procedure of the Spanish Data Protection Agency (AEPD) for the protection of the rights TD/01228/2018 by a former footballer who requested the cancellation of various news stories containing his personal data. It indicates that such news does not revert to a notorious or public nature and would be obsolete by the passage of time. The AEPD resolves by pointing out that this information is covered by press freedom because it relates to the public projection of the complainant and is not established to be uncertain.

Despite being a right recognized in the GDPR and in the Organic Law on Data Protection and Guarantee of Digital Rights, the right to be forgotten does not empower the interested party to build a custom past and eliminate from search engines results that are not to their liking. In order for the deletion of such data to be requested, it must be considered in some way unlawful and for this it will have to be a fair weighting in order to establish whether the right to data protection prevails or, on the contrary, the right to the exercise of freedom of information prevails.
In order for the right to freedom of information to prevail over the right to data protection, three aspects must be taken into account, such as: (i) the veracity of the news, (ii) the public relevance of the news and (iii) that the published information is not considered obsolete over time.

In short, before determining whether the person concerned is entitled to the deletion of certain personal data appearing after searching any engine by entering his or her first and last name, all the circumstances at stake must be weighed.

In the present case, we are (i) in the face of information related to the professional activity of the claimant in his football professional career -and not to personal life- with a professional relevance in relation to the activity he was carrying out and which he intends to carry out; (ii) that there is a legitimate interest of internet users to have access to such publications; and (iii) the information cannot be considered obsolete by the passage of time since the applicant's football career ended in 2012 and, moreover, it is currently intended to be a coach. That is why the three requirements required by the case-law of the Spanish Constitutional Court (SSTC 50/2010, October 4; 58/2018, June 4) and the Spanish Supreme Court (SSTS 545/2015, October 15; 12/2019, January 11) that the news is truthful, has a legitimate interest and is not obsolete. This is the reason why the request for the right to be forgotten exercised by the former soccer is denied, since the freedom of the press of the medium that publishes the news prevails.