The Spanish Origins of the European “Right to be Forgotten”
The Mario Costeja and Les Alfacs Cases
Ana Azurmendi
This essay first appeared in the Internet Monitor project’s second annual report, Internet Monitor 2014: Reflections on the Digital World. The report, published by the Berkman Center for Internet & Society, is a collection of roughly three dozen short contributions that highlight and discuss some of the most compelling events and trends in the digitally networked environment over the past year.
On May 13, 2013, the European Court of Justice recognized the right to be forgotten in the Mario Costeja case (2012), an action brought before this court for which another Spanish case, Les Alfacs (2010), had set a precedent.
Mario Costeja had suffered damages over the years as a result of an advertisement for a foreclosure sale, related to debts he owed to the Social Security administration, placed in the La Vanguardia newspaper in 1998. When the newspaper was digitalised, Google searches for the name Mario Costeja revealed personal data and financial information that are at present incorrect. This greatly affected his professional life. Costeja first filed a petition before the Spanish Data Protection Agency (SDPA) requesting that they require the newspaper to remove the information, yet his petition was not successful. The SDPA stated that the advertisement published in the La Vanguardia newspaper was legal, and that its removal would infringe freedom of expression. Nevertheless, the SDPA sent a request directed to Google Spain and Google Inc., calling upon these companies to stop indexing the aforementioned content. Google filed an appeal against the Agency’s decision — and other similar decisions — before the National High Court. It was this judicial authority that ultimately referred this question for a preliminary ruling before the European Court of Justice.
As for the Les Alfacs case, it concerned a company that owned a campground. In 2010 the company filed a lawsuit against Google Spain for ignoring an earlier petition requesting that the search engine stop placing in its top results news about a horrific tragedy that took place on their campsite in 1978, when a truck transporting propylene exploded, leaving 243 dead. The complainants demanded both the right to be forgotten and the company’s rights to honour, privacy, and self-image. The company wanted Google to filter the search results and differentiate between those who were looking for information on the tragedy and those who merely sought information about the campground, given that the way Google presented the search results at that time resulted in serious damages for the company.
In both cases, the personal information involved in the cases had been disseminated in proportion to its relevance when it was initially published. Nevertheless, the fact that this information was still widely available to a large audience ten to fifteen years after the original incidents did not appear to be logical if, on the one hand, it caused substantial moral and economic damages and, on the other, if the circumstances that led to its publication no longer existed. For this very reason, the right to be forgotten offers a solution that helps prevent longlasting damages while respecting freedom of expression (it is worth noting that the ruling is controversial; experts disagree on the effectiveness of this approach). This could entail establishing a reasonable timeframe for universal access to this type of information, and afterwards either: a) removing the original identifying information from the source, substituting it for initials or, b) considering instituting a two-step barrier before being able to access the information. In the latter approach, after a reasonable timeframe, the original information would be transferred to a periodical archive that would only be accessible through the media source’s website, and not directly through the search engines.
