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, such as Google, to withdraw information or data. his. Or to be clearer, erase with a stroke of the internet all reference to a specific fact about a person so that this information does not appear in a search engine when typing a name and surname.
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 valid for everyone, although there are exceptions.
So, as in all regulations, there are gaps to be resolved in their application due to the lack of clearer criteria, these sources add, on what can be deleted on the Internet and what has to remain there forever.
The first conclusion? Every 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 killing Nagore Laffage in the Sanfermines of 2008. On July 7, therefore, 16 years will have passed since that homicide.
So if today you type Yllanes and Nagore in an internet search engine, a good part of the information published in that virtual universe in the last three decades will appear.
The murderer went to court after Google and the Spanish Data Protection Agency denied him the right to erasure. Yllanes argues that he has already settled his account with the justice system and assures that in some of this information he is lied to as a rapist, despite the fact that the sentence at no time mentions sexual assault.
With this resolution on the Nagore crime, the judges would have done nothing other than abide by the norm. And this states that when deciding what information is going to be deleted, search engines and judges – if the case goes to court – must take into account whether that information is “inaccurate, inadequate, irrelevant or excessive” and, what more important and difficult to assess, whether there is a public interest in such information continuing to appear in search results.
The Contentious-Administrative Chamber of the National Court has been competent in the case of the Nagore crime. It has ruled that freedom of information and expression prevails here 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 sexist violence in Spain and its public relevance was evident in 2010, when the documentary Nagore was released, which obtained up to five nominations for the "Goya."
And remember that just three years ago “several media outlets reported on the rallies held in tribute to the deceased on the anniversary of her death.” So in this case, the judges understand, forgetfulness does not fit.
And if there is any erroneous information, the ruling encourages Yllanes – he was a psychiatry resident – to exercise his right to rectification. The person affected in this case has the option of filing an appeal before the Supreme Court.
ePrivacidad is a company with 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 that firm.
Most clients “are anonymous people who want to erase their online past,” 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 of these profiles are on the ePrivacy client list.
Samuel Parra states that for this company “it is very important to be honest with the client and analyze the possibilities of their case very well.” And he confirms that “the limits of the right to be forgotten are not always clear, so when it is very clear that this right cannot be opted for, what we do is not accept the request.”
In cases like that of the Nagore murderer “there is a good chance that this client is a victim of what we know as ‘the Streisand effect’.” It is when an attempt to censor or cover up information fails and instead of silencing the issue, its disclosure is triggered.
“It is happening now to José Diego Yllanes and it has just happened to the judicial secretary who investigated the case that convicted the poet Miguel Hernández in 1940,” Parra emphasizes. The Supreme Court has also just 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 ePrivacy. So with those petitioners who have committed crimes, we must be careful and always assess whether there are real possibilities of winning the lawsuit.
In these matters, adds Parra, “the time elapsed since the publication of a news item is taken into account; but also what facts it refers to, whether the sentence has been served or the interest it may have for the public.” And experience has shown that in blood crimes or high-profile criminal cases, that interest can last for many years.
José Leandro Núñez García, partner at the Audens firm and lawyer specialized 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 search engines." There are aspects such as whether the crime has prescribed or whether the criminal record has been cancelled, which can be taken into account. But this, Núñez concludes, would not occur in the case of the right to be forgotten requested by the murderer of Nagore.
