Spain’s Princess and her right (or not) to be forgotten

The Nóos corruption case has livening up the discussion regarding the right to be forgotten since Spain’s Princess Cristina considered appealing the Mallorca Provincial Court’s decision to prosecute her before the Supreme Court, as she has finally been found not guilty of the tax fraud charges she was accused of. One of the main consequences of this appeal would have been the possibility of exercising the right to be forgotten regarding online publications where she appeared sitting in the dock, in an attempt to clean up her reputation.

The princess and her husband are public figures, and this information is certainly of public interest.

Although it seems that she has changed her mind for personal reasons, from a legal and effective point of view this action would most likely have been unsuccessful and counterproductive, since the princess and her husband are public figures, and this information is certainly of public interest, for its repercussions and due to the fact that it is a current topic.

In its iconic ruling of May 13, 2014, following a case brought by Mario Costeja against the Internet giant Google, The European Court of Justice (ECJ) concluded that, according to Directive 95/46 / EC (articles 12 and 14 a) and the Charter of Fundamental Rights of the European Union (articles 7 and 8), users have the right to request search engines to remove links to web pages that appear in a list of results displayed following a search made on the basis of a person’s name.

This right is especially relevant when it is intended to eliminate links to legitimate publications from this list of results, whose contents cannot be removed from the main site because, for example, they are publications that comply with a law, e.g. the Official State Gazette, or when they rely on the right to information and freedom of expression, as is the case of newspapers.

Thus, even if the content has not been deleted by the source website editor, it will no longer appear in the list of results linked to a person’s name when their name is typed into the search engine.

Nevertheless, the ECJ expressly established certain limits in its interpretation of the right to be forgotten, in accordance with the exceptions already established by the abovementioned Directive. This is not an absolute right; its exercise should be based on the fact that information is inaccurate, inadequate, irrelevant or excessive regarding the way the data is handled, or that it be kept for a longer period than is necessary. It also states that even the lawful handling of accurate data may become, over time, inconsistent with the Directive, when such data are no longer necessary in relation to the purposes for which they were collected or processed, as happened in the Costeja case. In this procedure, the Court considered that the information displayed on two links of an online newspaper that appeared when typing the claimant’s name in the search engine, was if a sensitive nature because it referred to a seizure of money corresponding to a debt to the Social Security system. Considering that the initial publication took place 16 years previously, there were now no specific reasons justifying the overriding interest of the public having access to this information.

The right to be forgotten is not applied to people who play a role in public life in exactly the same way.

Therefore, according to the ECJ, it is necessary to find the right balance in each situationbetween the public interest, i.e. having access to information, and a citizen’s right to protect his/her privacy, and this balance depends on the nature of the information in question, its sensitivity for the affected person’s private life, and the public’s interest in having access to that information, which may vary precisely according to the role played by that person in public life.
Consequently, the right to be forgotten is not applied to people who play a role in public life in exactly the same way. This difference can also be found in Organic Law 1/1982 of May 5th 1982 on the protection of the right to honor, personal and family privacy and image, specially aimed at protecting one’s own image and reputation. This law establishes that the right to one’s own image does not prevent its collection, reproduction or publication by any means when it refers to someone with a public role, high-profile profession or public visibility, and the image is captured during a public act or in a public place, nor when there is considerable historical, scientific or cultural interest.

The seriousness and current nature of the Princess’ case could not be more important for public opinion, as despite being acquitted of the criminal charges she is attributed a lucrative participation for which she had to pay an important sum for civil liability damages, with her husband being sentenced to six years and three months in prison.

Even with the passage of time, there are strong arguments for not recognizing the Princess’ right to be forgotten regarding the Nóos case and its passage through the courts, because these are facts that could even have historical connotations, she is a major public figure and the images of her were captured with her knowledge and in public places.

In this context, a judicial action in defense of the right to be forgotten could have a Streisand effect, i.e. what occurs when an attempt to hide a piece of information has the unintended consequence of publicizing the information more widely, and inadvertently draw further public attention to it.∗
Article published in La Vanguardia on Tuesday, March 28, 2017.