ADC intervenes as amicus curiae in Supreme Court hearing in Denegri v. Google case
The Association for Civil Rights, represented by its president, Hernán Gullco, submitted a brief as amicus curiae in the public hearing held on March 17 by the Supreme Court of Justice in the Denegri v. Google case.
Gullco put forth ADC’s recommendation to reject the application of the “right to be forgotten” in the court case where former model Natalia Denegri demands that the Google search engine deindex TV content and photos featuring her in the 1990s.
After describing the affair under discussion as “momentous, linked to the conflict between the rights to honor and privacy and that of freedom of expression”, Gullco explained the grounds for the advice given by ADC as amicus curiae.
Here are the main concepts of our intervention:
“The claimed right to be forgotten is not mentioned in the National Constitution, for which it should not be considered within the right to honor and privacy. This poses a conflict with the right to freedom of expression, which has been invoked in this case, and it is up to the Court – as in other occasions – to weigh between these two competing rights.”
“The reference point here seems to be the Court jurisprudence linked to search engine technology. I cite the cases of Rodriguez, Gimbutas, and Mazza. The problem is that those precedents were based on assumptions different from the ones presented in this case. They referred to situations in which search engines led to inaccurate information about the plaintiffs. Thus, in those proceedings, the Court developed certain standards to determine in which exceptional instances may the conduct of a search engine be unlawful when allowing access to false information about a person”.
“This case is different, because here there is no doubt – nor does the plaintiff question – that the facts exposed are true. Therefore, the question is on the standards that should be applied. Although they do not relate to digital search engines but to traditional forms of media, it seems that the Court precedents in the Ponzetti de Balbín, Franco, and Barreiro cases are relevant to this one.”
“The Ponzetti de Balbín and Franco suits involved the publication of images on the press. Ricardo Balbín was a well-known politician whose photo was taken secretly while lying in agony in an intensive care unit. The Supreme Court ruled that the publication was not protected by freedom of expression, since although Balbín was a public figure, the news lacked public interest. The Franco case was similar: the photo of a murdered victim’s body, taken also covertly, from outside the house. The Supreme Court once again established that there was no public interest and, thus, the media was responsible”.
“In the Barreiro case, the Court reached the opposite verdict, because although it involved a hidden TV camera, the news related to child trafficking in the province of Misiones was of public importance and, therefore, the media was protected by the right to freedom of expression”.
“Applying these standards to the present case, what do we conclude? The plaintiff was a public figure at the time of the events, because she had voluntarily thrust herself into the public spotlight, and continues to do so now.
Secondly, the so-called Cóppola case actually was a matter of public interest. This was recognized by the First Instance and in the Appeal Courts. Thus, if the subject was of public interest and the information around it too, why would it be different for its footage?”
“Let us remember that freedom of expression does not only protect news that is neutral but also that which shocks, disturbs and offends, as the National Supreme Court of Justice, the Inter-American and the European Courts of Human Rights have said many times.”
“We are dealing with a public figure in a subject that is of public interest and, in addition, there is no legislation in Argentina that regulates the right to oblivion. This is fundamental because, according to the jurisprudence of the Inter-American Court of Human Rights, when we speak of “Laws”, article 30 of the American Convention, we refer to a legal norm passed by the legislative branch. There is no such law in our country. And the doctrine established by Advisory Opinion 6 of the Inter-American Court, when interpreting the concept of “Laws” in Article 30, was also expressly adopted in the Claude Reyes versus Chile case when it ruled that the restrictions to freedom of expression must be provided by a legal norm formulated by the legislature, which was not the situation in that case.”
“The specific law that regulates the Internet, consisting of only one article, nowhere provides for the so-called right to be forgotten. So, what would happen if tomorrow Congress were to modify this norm? I mean the National Congress, of course, and not a local legislature, which lacks constitutional competence on this issue. In that situation, the hypothetical law should meet the strict standards set by the Supreme and the Inter-American Courts regarding the validity of restrictions to freedom of expression”.
