ADC organizes successful webinar on Denegri case and “the Right to be Forgotten”

On Thursday, July 28, the Association for Civil Rights (ADC) organized a webinar titled “Access to Information on the Internet – Considerations on the Denegri v. Google case”, with presentations from ADC president, Hernán Gullco constitutional lawyer Andrés Gil Domínguez, CELE researcher Ramiro Álvarez Ugarte, and María Julia Giorgelli, from the Data Protection Center of the City of Buenos Aires Public Prosecutor’s Office.

The meeting was moderated by Julieta Cravero, ADC Strategic Communication leader, and brought together amicus curiae of the case for and against the so-called “right to be forgotten”, aiming to discuss the future consequences of the National Supreme Court’s ruling as to the regulation of digital platforms, freedom of expression on the Internet and the tensions between this right and the right to honor.

The first part of the webinar was focused on debating whether the right to be forgotten exists in Argentina after the Court’s recent decision.

Hernán Gullco expressed that “in our legislation, there is no such right to be forgotten” and that “the Personal Data Protection Law contemplates a sort of similar right, but only for financial reasons, not for the purposes of civil or commercial law”.

About the Court’s decision, Gullco pointed out, “It implicitly recognizes the right to oblivion by stating it does not apply in this case, being the plaintiff a public personality and the issue of public interest… Should another case arise in which the person affected is not a public figure or the subject matter lacks any public interest, the Court is very likely to recognize the right to be forgotten, which is not constitutionally provided as such but can be framed within the more general rights to honor and privacy.”

For her part, María Juli Giorgelli expressed that currently “there are several doctrinal rulings that establish a confusing scenario around the issue, and on which it is necessary to make a pronouncement.” About the particular decision in the Denegrí case, she expressed that “in recital 8, the Court does not rule out the existence of the right to be forgotten altogether when it establishes that this provision may be used exceptionally…  We must consider the issue of consent, as a central and basic principle in the processing of personal data, aspects related to the principle of purpose and, also, details related to automated processing in the protection of personal data.”

Andrés Gil Domínguez, in turn, stated that “for the current Supreme Court of Justice, there is no right to be forgotten, considering jurisprudence set by this very Court.” In addition, he put the spotlight on recital 23 of the Court’s ruling: “there it is said that from Google’s allegation at the hearing, it can be inferred that the algorithm is not traceable, nor transparent, and can be employed in a biased manner to list some websites over others in its search results”, whereas in recital 10 it says that Google’s algorithm is purely automatic, thus its indexing is transparent. So, is Google’s algorithm what is said in recital 10 or recital 23?”

Closing the first part of the webinar, Ramiro Álvarez Ugarte argued: “Today, the right to be forgotten as such does not exist, in the sense that it has not been expressly recognized by the highest Court, while in a case in which it had to rule, it actually refused to grant this right.” “The right to oblivion does exist elsewhere, in the claims that have arisen and will arise in this sense and that make this issue an unfinished discussion”, concluded the CELE researcher.

The second part of the talk was dedicated to pondering on recital 23, in which the judges stated that there are several questions about the field of applied computer technology in the light of the fundamental rights recognized in the National Constitution and human rights treaties.

On this point, Álvarez Ugarte pointed out that he perceives the recital as “a footnote” to the ruling, where the Court merely draws attention to something that is under discussion all over the world. “The ruling leaves room for an eventual decision [of the Court] on claims in which algorithms are in question, especially about the role they play managing information flows and curating content, in a global context where there are regulations on the matter,” summarized Álvarez Ugarte.

Andrés Gil Domínguez deemed that the recital is “unsettled”, as a consequence of the Court’s logic based on an analog rather than a digital model. “It does not consider the new subjective constitution, in which people are data. We interact digitally, and today’s intimacy is understood better as the concept developed by Jacques Lacan, extimacy,” he added.

Regarding the Supreme Court, Gil Domínguez said: “It has an analog idea of privacy and technology, at times inaccurate and contradictory”.

María Julia Giorgelli agreed that the ruling “will not be a great contribution” and that “there is a real need for regulation, for the government to express something on this”. “It is incomprehensible why the Court made such a low-quality response, being there so much material on the topic”, the expert wondered.

In turn, the president of ADC, Hernán Gullco, said about recital 23: “I am not sure if the obiter remark will have a legislative impact; I could agree with my colleagues’ suspicion that the answer is none”. And he continued: “It is said that digital technology renders many of the past arguments given by the Court obsolete. Now, one of the strengths of law is its adaptability, it is to be stable and while adjustable to changes”.

After a round of questions and answers with the audience, Gullco closed the webinar.

“This case raises an old discussion: the limits between freedom of expression, on the one hand, and the right to honor and privacy on the other, applying to new technologies,” said ADC’s president. He concluded: “We must continue to debate all this. New Court cases that arise will be an excellent opportunity for us, either as counsel for the parties or as amicus curiae, to offer our criteria and opinions, and perhaps the Supreme Court and others will deliver better rulings and lead to a legislative reform drawing a clear line between the two rights in conflict.”