right to be forgotten

The highest courts of two American countries have said “No” to the right to be forgotten, they have said “No” to the possibility of deleting or limiting access to information on the Internet that may be of public interest.

The Courts of Argentina and Mexico ruled against the application of the so-called “right to be forgotten” in two modalities: the traditional one – the one that limits the right to information and freedom of expression – and a derivative innovation – the one that forced heirs and executors to delete the personal information of their deceased from any public or private repository.

Why does it matter? Two American countries outline legal criteria to guide the debate on a law of application in the European Union but contrary to the characteristics of inter-American law.

The European validity of the right to be forgotten produced in America an avalanche of requests to delete personal data on the Internet of people with suspicious or declared toxic reputations —especially politicians and drug traffickers—, and caused a business niche capable of intimidating and demanding the deletion of information taking advantage of the legal ignorance and institutional weakness of the Latin American media.

The “right to be forgotten” is a resource for the protection of private life in force since 2014 in the European Union, with the particularities of that bloc of nations. It implies the concealment of information from its deindexation in search engines such as Google (which processes 9 out of 10 online searches), which makes the information inaccessible and makes it invisible.

But the American tradition is different, more concerned with historical memory and with avoiding the concealment of information of public interest as a way to build free and democratic societies.

In the Argentine matter, in the case known as Denegri vs. Google, the Court determined that freedom of expression is above the right to honor “as long as they are publications referring to public officials, public persons or issues of public interest.”

The case was a setback for the actress Natalia Denegri, who demanded the removal of links indexed in search engines —read Google— that linked her to a corruption case in the 1990s. The case “had great public interest in society, with which removing said content (from Google) would affect freedom of expression, and would deprive society of having access to that information,” the Court recalled in its ruling last June. .

In Mexico, the Court considered that the right to be forgotten post mortem “establishes a barrier to public debate” and can inhibit public deliberation to the detriment of “the social dimension of freedom of expression and the right to free access to information.” .

The Mexican Court considered article 1392 Bis unconstitutional. of the Civil Code of Mexico City that imposed obligations on heirs and executors on any source of public or private information, a derivation of the “right to be forgotten” that required erasing personal data from the original source (photos, videos, posts on Facebook or Tik Tok, publications in the press and any other data available through Google or Bing).

Can you imagine a law that forces the heirs of Elba Esther Gordillo, for example, to go through life deleting any information related to the union leader until access to historical memory about her is emptied?

If the right to be forgotten were allowed, “we would be editing the history of the world,” Edison Lanza, a former rapporteur on freedom of expression for the Organization of American States (OAS), told me.

The rulings in Argentina and Mexico strengthen the inter-American human rights model and are an invitation to inform us about a crucial issue for Latin American democracy: the preservation of memory.