The right to be forgotten is a rule applied for the first time in May 2014 in the European Union, when a Community court ruled that people have the right to request virtual search engines, as would be the case with Google, to withdraw of your information or data. Or to be more clear, delete all reference to a specific fact about a person on the internet so that information does not appear in a search engine when a name and surname are typed.
Since then, thousands of rights to be forgotten have been granted. But is this European standard mandatory for all people or cases? Also for those convicted of crimes and criminals? In theory, experts agree, yes. It should be true for everyone, although there are exceptions. So, as in all rules, there are gaps to be resolved in their application given the lack of clearer criteria, these sources add, about what can be deleted on the internet and what must remain there forever.
The first conclusion? Each case is a world. And in one of the last requests known and denied by justice, it is clear that this right to be forgotten does not apply to everyone. The protagonist of this dismissed lawsuit is José Diego Yllanes, sentenced to 12.5 years in prison for having killed Nagore Laffage in Sanfermines in 2008. On July 7, he will therefore be 16 years old since this murder. If you type Yllanes and Nagore into an internet search engine today, much of the information published in this virtual universe in the last three years will appear.
The murderer went to court after Google and the Spanish Data Protection Agency denied him the right to this erasure. Yllanes argues that he has already settled his account with justice and assures that in some of these reports he is mentioned as a rapist, when at no time in the sentence is there any mention of sexual assault.
The judges would not have done, with this resolution on the crime of Nagore, anything other than adhere to the norm. And this rule says that, when deciding which information will be deleted, searchers and judges – if the case goes to court – must take into account whether the information is “inaccurate, inappropriate, irrelevant or excessive” and , the most important and difficult to assess, if there is a public interest in the aforementioned information continuing to appear in the search results. The Administrative Litigation Chamber of the National Court has been the competent one in the case of the Nagore crime. It has ruled that here freedom of information and expression prevails over the so-called right to be forgotten. This court also emphasizes that the Nagore case continues to be “one of the symbols of the fight against male violence in Spain and its public relevance was highlighted in 2010, when the documentary Nagor5 was released, which obtained up to to five nominations for the Goya”. And he remembers that only three years ago “various media were covering the rallies held in tribute to the deceased on the anniversary of her death”. So in this case there is no oblivion, the judges understand. And if there is any erroneous information, the sentence encourages Yllanes – former resident of Psychiatry – to exercise his right of rectification. The person affected in this case has the option of submitting an appeal to the Supreme Court.
The company ePrivacydad has more than 15 years of experience in the elimination of information on the internet and the application of the right to be forgotten. The profiles of people who have made this request are “very disparate”, reveals Samuel Parra, lawyer and founding partner of this firm. Most customers “are anonymous people who want to erase their past online,” he adds. In these cases, there are usually no problems. Everything is more complicated when the petitioner is a politician, a football club owner, a murderer, a drug trafficker or a businessman convicted of a tax crime. All these profiles are on the ePrivacydad client list.
Samuel Parra states that for this company “it is very important to be honest with the client and to analyze very well the possibilities of their case”. He confirms that “the limits of the right to be forgotten are not always clear, so when it is very obvious that you cannot opt ??for this right, what we do is not accept the request”.
In cases like that of Nagore’s murder, “there are many possibilities that this client will be a victim of what we know as the Streissand effect”. It’s when an attempt to censor or cover up information fails and instead of calming down the issue, its disclosure is triggered. “It is now happening to José Diego Yllanes and it has just happened to the judicial secretary who investigated the case that condemned the poet Miguel Hernández in 1940”, stresses Parra. The Supreme Court has also denied that official the right to be forgotten.
A failed attempt always causes the opposite effect. “Not only is that information not deleted, but it causes new news that makes it topical again”, reiterates this founder of ePrivacydad. So, with these petitioners who have committed crimes, it is necessary to proceed with lead feet and assess, always, if there is a real possibility of winning the lawsuit. In these matters, adds Parra, “a lot is taken into account of the time that has passed since the publication of a news item; but also what facts it refers to, if the sentence has been served or the interest it may have for the public”. And experience has shown that in blood crimes or highly publicized criminal cases, interest can last for many years.
José Leandro Núñez García, partner of the Audens law firm and lawyer specializing in data protection, shares this statement. Requests are usually denied “when they refer to relevant facts (due to their seriousness, consequences, public interest…), are related to a crime or that action affects a politician or public figure”, he says. It is considered – he adds – that “the relevance of the fact will decline over time, but there is no mathematical rule about the years that must pass to eliminate that information from the search engines”. There are aspects such as the statute of limitations for the crime or the expungement of the criminal record, which can be taken into account. But this, Núñez concludes, would not happen in the case of the right to be forgotten requested by the Nagore murderer.
