/ Right to Be Forgotten: An Institution Based on Jurisprudence

Despite the lack of a legal foundation for the right to be forgotten, it has been recognized jurisprudentially, although a single criterion has not been established for balancing the competing rights.

Trinidad Moreno M.
Associate Attorney

The institution of the right to be forgotten has developed through jurisprudence and doctrine, both nationally and in comparative law. As society becomes more digital, individuals are increasingly aware that they have tools to protect this right, which ultimately translates to safeguarding their personal data, honor, and informational self-determination. Simply visiting a news portal reveals the vast amount of personal data available in electronic media. Through the judiciary, individuals have claimed violations of their right to privacy, their honor, and that of their families, as well as their personal data, enshrined in Article 19 No. 4 of the Political Constitution of the Republic (CPR), by filing protection remedies invoking this right.

While the right to be forgotten has not been expressly established by Chilean legislation, it has been recognized by our courts of justice. In Chile, the Supreme Court (CS) defined it as the “possibility for a person to seek the removal of unfavorable information about themselves that causes current harm and is contained in available computer systems, for a plausible reason” (CS Case No. 22243-2015).

In cases brought before the courts, plaintiffs demand the modification or deletion of content directly from search engines and/or the media that publish it. These cases often involve a conflict of rights. On one hand, there is the right to privacy, honor, and personal data protection of the person whose information circulates in the media. On the other hand, there is the right to freedom of expression, including the freedom to provide information via digital media. In the balancing test, the determining right will be established considering the time elapsed since the content went online and the public interest.

In two rulings on the matter, the CS concluded that periods of less than one year and three years, respectively, since the actor’s acquittal were insufficient for exercising this right and determining that the news about these events was currently irrelevant (CS, cases No. 25154-2018 and No. 5493-2019). Regarding public interest, the Press Law states that a newsworthy event of public interest involves facts reported by the media that, being specific and true, affect a subject performing public functions, and the report pertains to those functions, except for matters related to the subject’s sexual, marital, family, or domestic life.

Despite these balancing criteria, jurisprudence has not followed a unified approach and is often contradictory. On one hand, protection remedies have been rejected by the CS, which has considered journalistic information to retain public interest and search engines to be “neutral entities” (CS, Protection Remedy No. 97408-2020). In contrast, a few years earlier, the Court of Appeals of Valparaíso upheld a protection remedy for the right to be forgotten and ruled that search engines must implement prior filters in any circumstance that threatens honor and privacy (CA, Valparaíso, Case No. 228-2012).

However, in recent rulings, the CS has upheld the constitutional action, favoring the right to privacy, honor, and personal data protection. An example is Protection Remedy No. 3381 of 2023, where the petitioner requested the removal of his information from search engines that linked him to an accident for which he had been acquitted ten years earlier. The CS noted that “under these circumstances, the continued retention of information by the respondents is arbitrary, as it lacks justification, given the long period it has been online and its irrelevance to the public; thus, its preservation clearly infringes on the petitioner’s right to mental integrity and honor.”

The latest CS ruling of this year, Case No. 29-2024, also recognized the right to be forgotten, favoring the right to honor. In this case, a claim was filed against a search engine that maintained indexed information linked to the complainant’s name and a sexual offense accusation that did not lead to prosecution. The CS upheld the protection remedy, considering that maintaining this information violated the right to honor.

As the right to be forgotten is not established by law and lacks consistent jurisprudence, the information may be deemed of public interest, or insufficient time may have elapsed for its removal from networks. This could impact various aspects of private life and directly affect a person’s reputation.