The Constitutional has issued a ruling that strengthens the right to be forgotten on the internet. By nine votes to two, the court has considered that the fundamental rights of a trader have been violated, due to the comments disqualifying his professional activity posted on server pages outside the European Union, accessible through the Internet search engine Google. The ruling considers that the maintenance of these links does not meet the parameters of public interest or of having sufficiently current data.
With this sentence, two previous ones of the National High Court and the Supreme Court, respectively, are annulled. Both resolutions in turn annulled the initial decision of the Spanish Data Protection Agency (AEPD), which had supported the appellant in his request for the deletion of certain data that disqualified his professional activity. Such data was published on complaint portals located in the United States, and which were accessed in Spain through the Internet search engine Google.
The Constitutional refers first of all to its own doctrine on the recognition of the right to be forgotten, on which it already ruled in judgment 58/2018, on that occasion in relation to the newspaper library of a digital newspaper. In this case, the substance of the new ruling is that it means that the Google search engine may not continue to link the appellant’s name to a complaint filed anonymously by a private citizen on an Arizona web page, thereby removing the link to that page.
The court has granted the protection to the appellant in recognition of the right to data protection of art. 18.4 of the Constitution, in relation to the right to data deletion (right to be forgotten) of art. 17 of the General Data Protection Regulation of the European Union. In this regard, the ruling specifies the limits of the right to be forgotten, among which the factor of the public importance of the news and its antiquity stand out.
It also considers the responsibility of the entities that operate Internet search engines and make available to Internet users data and information posted on web pages. The sentence considers that such entities must respect the right to suppress those links, when they infringe the regulations of the European Union and Spanish on the matter.
The resolution considers that the fundamental right invoked by the appellant has been violated, since the comments disqualifying his professional activity posted on the pages of servers outside the European Union did not meet the parameters of public interest or have sufficiently current data. that justifies the maintenance of the links to access it. Consequently, the claim is upheld, declaring the indicated violation of the right to the protection of personal data, with nullity of the appealed judgments, without the need to adopt other measures to repair the right, not requested by the appellant.
Judges Juan Antonio Xiol and María Luisa Balaguer have announced a dissenting opinion, considering that the amparo appeal should not have succeeded, since in their opinion the information on the appellant’s commercial activities could be of interest to consumers. On the other hand, in this matter the possible collision of rights has also been weighed, between the aforementioned to oblivion and that of the freedom of expression of the individual who criticized the commercial work of the appellant. For the majority of the court, the first of these rights should prevail in this case, considering that the right to freedom of expression was not affected, because it was already expressed ten years ago when formulating its complaint. On the other hand, such disqualification will continue to appear on the web page to which it was sent, so that it simply cannot be directly associated with the appellant’s name and will not appear on their digital profile.