Right to be forgotten: ruling recognizes its application in Uruguay
For that reason, several countries have begun to expressly establish “the right to be forgotten”, under which a person could request that their personal data (whether information, videos, or images) be deleted from search engines (for example, Google) and other online sites.
Does the right to be forgotten exist in Uruguay?
In Uruguay, Law No. 18,331 (“Personal Data Protection Law”) establishes the rights and duties of individuals regarding their personal data, including the right to request the rectification, updating, or deletion of such data in any record or database. In addition, the law establishes that database managers must take appropriate measures to ensure the privacy and security of the data.
However, there is no specific law that establishes the right to be forgotten in Uruguay.
In 2018, the discussion entered the sphere of the Judiciary. The plaintiffs argued that several news articles attributed to one of them the commission of an alleged crime, whose complaint had been filed several years ago.
In 2022, the Civil Court of Appeals of the 6th Turn (i) admitted the application of the right to be forgotten in Uruguay, and (ii) condemned Google Argentina SRL and Google Inc. to “de-index” and unlink from their search engine, data and personal information of the plaintiffs (in sentence No. 193/022-6, confirming the ruling of the First Instance of the Civil Court of the 2nd Turn of Montevideo).
De-indexing consists of removing the link between the search performed (for example, a person's name), and the results displayed by the search engine (in this case, Google). In this way, the person's name would no longer be linked to certain internet content, but the websites do not disappear, they just lose visibility.
What are the main conclusions regarding the application of the right to be forgotten in Uruguay?
A. Establishment of the right to be forgotten. The Court understood that the right to be forgotten is transferable to our legal system as a corollary of constitutional norms (Arts. 7, 72, and 332) and the principles extracted from the Personal Data Protection Law. Likewise, various international instruments - ratified by our country - would also be applicable, such as: the Universal Declaration of Human Rights (Art.12); the International Covenant on Civil and Political Rights (Art. 17); and the American Convention on Human Rights (Art. 11).
B. Scope of the right to be forgotten. The Ruling states that every person has the right for their personal data not to remain on the Internet permanently and indefinitely (which could “incite discrimination and permanent hatred”), and, for that reason, they can request the removal from search engines and other online sites. Although it affirms that it would be desirable for future legislation to be approved, the scope of the protection of the right should be analyzed on a case-by-case basis, in order to correctly weigh the other rights “at stake” (such as freedom of expression, access to information, etc). According to the Court, the right does not imply “erasing” or “covering up or hiding [the] information”, but it “implies the right of the person not to remain exposed or linked for life to these facts on social networks and the Internet”.
Final reflections
The discussion on the application of the right to be forgotten is far from settled. However, it is clear that the main aspect of any analysis must necessarily consider a “balance” between the right to information, and the privacy and protection of the honor of individuals in general.
Montevideo, April 3, 2023
*Article merely informative prepared with the collaboration of Attorney Gabriela Ripoll.
