The battle seems to be waged between “right to be forgotten” and “freedom of expression”. That is what the justices of the Supreme Court of Justice heard today as they led to talk to twelve “friends of the court” who argued for and against the lawsuit brought against Google Natalia Denegri, a young woman who became known in the '90s with the Cóppola case and who today does not want all that scandal affect your new life. Journalistic entities, civil associations, interested lawyers and ombudsmen were divided in their arguments for and against.
The journalistic associations raised the seriousness of curtailing from search engines the lawful content of what constituted an act of corruption and which showed a way of making television when there was no Internet. Faced with this, he demanded to limit what other “digital pasts” can be erased from the network affecting the public interest.
Those who argued in favor of Denegri argued that, in this case, she was a minor who had been violated and that women's rights that “it is not no” should be respected with today's gaze. One of those called up even appealed to a popular saying: “What happened in Las Vegas remains in Las Vegas, but everything that happened on the Internet remains on the Internet. We all have the right to a second chance.”
It was the Buenos Aires Ombudsman, Guido Lorenzino, who gave the note of color in the audience when he talked about “digital gender violence”, how we can choose our gender but “appropriate our digital data” and brought to the audience the figure of Vice President Cristina Kirchner, who initiated a pre-lawsuit against Google.
“Google's lack of algorithmic transparency enabled the indexing of its name to false content, which caused manifest damage to its person and honor, as well as to democratic institutions and the presidential inauguration. The case of Natalia Denegri and Cristina Kirchner are two similar cases that lead us to a conclusion: either we limit ourselves to algorithms, or algorithms will condition our rights and institutions,” Lorenzino said. And he asked the Court to demand that Congress deal with a bill aimed at creating the National Algorithm Agency.
The meeting took place between 10 a.m. and noon, on the fourth floor of the Court Palace in front of judges Horacio Rosatti, Carlos Rosenkrantz, Juan Carlos Maquda and Ricardo Lorenzetti, who, with their masks on, reopened the stage of public hearings, held back by the pandemic. The hearing, with Natalia Denegri and Google's lawyers present, will continue tomorrow when it's time to talk about the protagonists of the case and the Attorney General. It will be time for the ministers of the tribunal to ask their questions. The judges will then proceed to deliberate, without deadlines, on their verdict.
The selection of voices was equally chosen. On both sides, arguments were heard to ratify or revoke the lawsuit, which already had two favorable resolutions. The “friends” of the court they presented today were: the Ombudsman of the Autonomous City of Buenos Aires, María Rosa Muiños; the Association of Argentine Journalistic Entities (ADEPA); Andrés Gil Domínguez and Raul Martínez Fazzalari; the Association for Civil Rights (ADC); Horacio Roberto Granero; Center for Legal Studies and Social (CELS); Ricardo Alberto Muñoz (h); the Civil Association for Constitutional Studies (ACEC); Francisco Javier Seminara; the Civil Association Usina de Justicia; the Buenos Aires Ombudsman Guido Lorenzino; and the LED Foundation Freedom of Expression+Democracy.
In favor of Natalia Denegri, the ombudsmen said. María Rosa Muiñoz argued that it should be taken into account that “women” suffer harm when relating them to facts or names of the past. “Under the regulations in force in our country, everyone is guaranteed the right to rectification, updating and, where appropriate, deletion. In this sense, we understand that, under this normative framework, that of habeas data, it is necessary to solve the present case”. After arguing that “it is very difficult to get out of the logic imposed by intermediaries” such as Google and other search engines, Muiñoz pointed out that there are cases of “people reported for a breach and then acquitted, who have difficulty obtaining employment because their data continues to appear on the Internet without updating” or “people who, opting for a change of gender identity, they continue to figure with the former identity.”
Constitutionalist Andres Gil Domínguez alluded to the recent date on which “Women's Day” was commemorated and warned that “rights are not absolute”. “When this happened I was a minor. The actor does not want them to forget about her, but to rescue and protect that child she was,” she said. Ricardo Muñoz Jr., a university researcher, also complained about Denegri's situation of vulnerability at that time and demanded that “a gender perspective be applied”. “Regardless of whether it has voluntarily submitted to the generation of such content, that submission has been revoked,” he said. And lawyer Horacio Granero pointed out that everything happened between 1996 and 1997 when “there was no Google” and warned: “If we think she accepted if it existed, I would think twice.” He was the one who alluded to the example of “Las Vegas”.
Against the proposal, it was ADEPA, through Carlos Laplacette, the first to speak. He said that there is “concern” and that making room for demand “does not cease to constitute a barrier to the search for information.” “Outdated information pollutes the public debate and even more so if we suppress it,” he added. “The solution cannot fall into the hands of those who want to hide illegal information, nor of search engines,” he stressed.
This was joined by Hernán Gullco, of the Association for Civil Rights (ADC), who warned that De Negri “was a public figure and voluntarily exposed himself to the spotlight of public opinion and continues to do so now.” Another point he highlighted is that, unlike other cases on which the Court ruled on Google, “the information is true, it existed, it is true, so the question is what standards are we going to apply here”. According to him, “the so-called Coppola case did have a public interest and if the topic is of public interest, why would the videos not be too. Freedom of expression not only protects aseptic news but also those that offend.” Finally, he stressed that in Argentina there is no law regulating the right to be forgotten.
CELS, meanwhile, also questioned that previous rulings did not analyze that Denegri had been “involved in matters of public interest” and therefore “the limits of a public figure are broader than in the case of an individual”. And constitutionalists Pedro Caminos and Lorena González Tocci, from ACEC, reinforced that idea: “The right to be forgotten cannot be accepted in public persons and a media and elected past cannot be built.” Thus, they emphasized “avoiding the risk of it being used as an instrument of censorship” because “the right to be forgotten is not the right to design our past.”
Usina de Justicia, with the philosopher Diana Cohen Agrest and lawyer Fernando Soto as representatives, added: “In this case she has participated in a police event and has participated in programs that talk about this police act, about corruption, and this concerns the corruption of officials, but also because of the treatment given to her by journalism which is in the public interest”. The philosopher stressed that in Europe 18% of requests for the right to be forgotten are from defendants in criminal cases. “Nobody wants their past crimes to be easily accessible, yet the courts do not authorize such deindexing,” he said.
The final word went to the LED Foundation, which highlighted that the application of the right to be forgotten in this case “would mean a serious deterioration in the free flow of information and its impact on the culture, history and present of the community” and even mentioned the case of a journalist from San Luis who was forced to delete a publication about a female official from that province that she herself would have disseminated.
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