The controversy over the so called “right to be forgotten” recently surfaced in Mexico. A few months ago, the Mexican National Institute for the Access to Information (INAI) ordered Google Mexico to remove embarrassing—but true—search results about a prominent businessman. Free speech advocates expressed their concern about the censorial effect of the decision and sided with Google, which is now appealing the decision before the ordinary courts.
The INAI ruled in favor of a transportation magnate, Carlos Sánchez de la Peña, who wanted three links removed from Google search results. The links contained negative comments about the business dealings of Mr. Sánchez’s family—including a government bailout of bad loans. The INAI heard the case after Google Mexico rejected a petition from Mr. Sánchez de la Peña to have the links removed.
In his request to the INAI, Mr. Sánchez claimed that the three Google links distorted and decontextualized information about his activities as an entrepreneur. Mr. Sánchez de la Peña’s family has owned “Estrella Blanca” bus lines for generations. One of the links directed to an article about a lawsuit against Mr. Sánchez’s father, Salvador Sánchez Alcántara, by shareholders in the bus company. Mr. Sánchez de la Peña is named in the story and the snippet accompanying the link. The article also discusses how the company received millions of dollars in loans from Mexican banks that collapsed during the country’s financial crisis in the mid-1990s. The loans, most of them past-due, were absorbed by Mexico’s bank-bailout fund known as IPAB.
The Federal Law on Protection of Personal Data Held by Private Parties [“DP Law”], provides a set of rights called “ARCO rights”, that refer to the rights of Access, Rectification, Cancellation and Objection, that data owners can exercise against the processing of their personal data by private parties. The Regulations to the Federal Law on the Protection of Personal Data [“DP Regulations”] further qualify those rights. However, the principle according to which a person can request the cancellation of his personal data is very vague. Also, limitations to said cancellation right seem highly discretionary and vaguely defined under Article 26 of the DP Law as well as under Article 88 of the DP Regulations. The INAI commissioners considered that Mr. Sánchez met the privacy-law requirements that allow for the removal of information when its “persistence causes injury” even if the information was lawfully published.
Mexico’s data privacy law contains exceptions to Internet privacy rules if the information is in the public interest. The INAI, however, did not apply the exception, arguing that Google didn’t claim those exceptions when making its case.
The INAI ordered the removal only from google.com.mx. Mexico’s data privacy law only requires the removal of links from local search engines.
Google will be challenging the INAI ruling before the ordinary courts. Google Mexico considers that the INAI decision infringes on the right to access to information and freedom of speech. Free-speech advocates sided with Google Mexico by noting that the INAI ruling would allow politicians and business tycoons to abuse the so-called right to be forgotten by wiping out Internet links that cast them in a negative light. Activists and advocates are warning society about the negative effects of this type of rulings, especially in countries like Mexico, where the independent press and media are still fighting against censorship. The INAI ruling removes pieces of information that are essential for academics, think tanks and critical journalists in their work to hold elusive and criminal government officials accountable for their deeds before Mexican society.
José Camarena is a Mexican attorney and can be reached at pepecl2003@gmail.com.
Date published: June 3, 2015