Edward L. Carter, Argentina?s Right to Be Forgotten

• Citation: Vol. 27 No. 1
• Publication year: 2010
• topic: Intellectual Property,Civil Procedure,Internet, Media and Communications

ARGENTINA’S RIGHT TO BE FORGOTTEN

Edward L. Carter*

INTRODUCTION

The twentieth century Argentine author Jorge Luis Borges wrote a fictional short story about a boy named Ireneo Funes who suffered the curse of remembering everything.1 For Funes, the present was worthless because it was consumed by his memories of the past. One contemporary author has described

the lesson of Funes: “Borges suggests that forgetting—that is, forgetting ceaselessly—is essential and necessary for thought and language and literature, for simply being a human being.”2 The struggle between remembering and forgetting is not unique to Borges or Argentina, but that struggle has manifested itself in Argentina in poignant ways, even outside the writings of

Borges. In recent years, the battle has played out in Argentina’s courts in the form of lawsuits by celebrities against the Internet search engines Google and Yahoo.

Actresses, models and athletes have brought some two hundred lawsuits, most filed by the lawyer Adolfo Martín Leguizamón Peña, against Google and Yahoo to demand removal of Internet search results and links to photographs.3 Many of the plaintiffs allege that Internet search results improperly associate

their photographs—some of which are sexually suggestive and which were presumably taken and posted originally with permission—with pornography or

* Associate Professor of Communications, Brigham Young University.

1. JORGES LUIS BORGES, Funes El Memorioso, in FICCIONES – EL ALEPH – EL INFORME DE BRODIE 50

   (Biblioteca Ayacucho 1986).

2. Aleksandar Hemon, Alexsander Hemon on Jorge Luis Borges’s ‘Funes the Memorious,’ DAILY BEAST (Sept. 26, 2012, 4:45 AM), http://www.thedailybeast.com/articles/2012/09/26/aleksandar-hemon-on-jorge- luis-borges-s-funes-the-memorious.html. In his personal life, Borges may have wanted to forget—or have

   others forget—his “promotion” by the regime of President Juan Domingo Perón from municipal librarian to poultry inspector; long-time bachelorhood, followed by a short-lived and unhappy marriage; criticism for not opposing more publicly and vigorously the “Dirty War” in which Argentina’s military dictatorship caused the disappearance of thousands of left-wing opponents; and failing to win the Nobel Prize for Literature even though he was one of the preeminent writers and philosophers of his time. EDWIN WILLIAMSON, BORGES: A LIFE 292–94, 374, 453–54 (2004).

3. La Justicia argentina sobreseyó a Adriana Noreña, directora general de Google, INFO TECHNOLOGY

   (June 4, 2012, 1:06 PM), http://www.infotechnology.com/internet/La-Justicia-argentina-sobreseyo-a-Adriana- Norea-presidente-de-Google.hmtl-20120604-0005.html.

   prostitution.4 The most prominent of these cases in Argentina involves the Argentine pop singer Virginia Da Cunha, who prevailed against Google and Yahoo in a trial court in 2009 but lost on appeal in 2010.5 Another plaintiff is the combustible Argentine former soccer star and coach Diego Maradona.6 Argentina’s Supreme Court has yet to weigh in on the issue, although one of the current cases eventually could make its way there.

   
   

   The current litigation in Argentina has attracted worldwide attention in the form of a growing conflict between privacy and free speech on the Internet. American legal scholar and media commentator Jeffrey Rosen has focused attention on the conflict, decrying the negative effects of the so-called “right to

   be forgotten.”7 The issue has arisen in the European Union, where a proposed

   regulation before the European Parliament would recognize a “right to be forgotten and to erasure” for a range of data commonly available online.8 The EU Data Protection Supervisor already has acknowledged that Article 17 of the proposed regulation, which recognizes the right to be forgotten, may need some revision in order to be viable.9 Meanwhile, the right to be forgotten has been invoked in litigation in Spain, where the nation’s highest court asked the European Court of Justice in 2012 for its opinion on the right of Spaniards to require Google to delete data about them.10

   
   

   Rosen and other free speech advocates have raised concerns that Argentina is leading a growing movement for a broad right to be forgotten that could shut down access to previously public information. A close examination of the Da

   
   

4. Id.

5. Leo González Pérez, La pelea entre modelos y buscadores sumó otro round, CLARÍN (Aug. 23, 2010), http://www.clarin.com/sociedad/pelea-modelos-buscadores-sumo-round_0_322167828.html.

6. Uki Goni, Can a Soccer Star Block Google Searches?, TIME (Nov. 14, 2008), http://www.time.com/

   time/world/article/0,8599,1859329,00.html.

7. Jeffrey Rosen, The Deciders: The Future of Privacy and Free Speech in the Age of Facebook and Google, 80 FORD. L. REV. 1525, 1534 (2012); Jeffrey Rosen, Free Speech, Privacy, and the Web That Never Forgets, 9 J. TELECOMM. & HIGH TECH. L. 345, 352 (2011); Jeffrey Rosen, The Right to Be Forgotten, 64 STAN. L. REV. ONLINE 88 (2012); Jeffrey Rosen, The Web Means the End of Forgetting, N.Y. TIMES, July 25, 2010, § 6 (Magazine), at 30.

8. Proposal for a Regulation of the European Parliament and of the Council on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data (General Data Protection Regulation), at 9, COM (2012) 11 final (Jan. 25, 2012).

9. Peter Hustinx, Opinion of the European Data Protection Supervisor on the Data Protection Reform Package, EUROPEAN DATA PROTECTION SUPERVISOR 1, 19 (Mar. 7, 2012), http://www.edps.europa.eu/ EDPSWEB/webdav/site/mySite/shared/Documents/Consultation/Opinions/2012/12-03-07_EDPS_Reform_

   package_EN.pdf.

10. T.C. Sottek, Spain Challenges Google with ‘Right to be Forgotten’ in EU, VERGE (Mar. 5, 2012, 11:45 AM), http://www.theverge.com/2012/3/5/2846192/google-right-to-be-forgotten-Spain-EU-court.

    Cunha case, however, suggests that free-expression fears about the right to be forgotten might be premature. The short-lived right-to-be-forgotten victory of Da Cunha, as with other plaintiffs who have prevailed in Argentina’s courts, actually hinged on decades-old notions of privacy, intellectual property, and data protection. Still, the combination of those claims in the context of Internet speech promises a continued fight over the proper balance between freedom of speech and privacy. Argentine plaintiffs, and some judges, appear ready to strike a blow to the Internet’s penchant for memorializing things forever. This Recent Development tracks the current trend of litigation on the issue in Argentina.

    
    

    1. DA CUNHA V. YAHOO AND GOOGLE (LOWER COURT HOLDS AGAINST SEARCH ENGINES)

       
       

       Virginia Da Cunha is a thirty-one-year-old dancer, singer, actress and model from Córdoba, Argentina.11 As part of a group called Bandana, Da Cunha came to prominence through the television reality competition “Popstars” in 2001.12 Bandana arrived at No. 1 in Argentina and Da Cunha began appearing on television as an actress and personality.13 She participated in the 2009 Vans Warped Tour in the United States as part of a band called Virgin Pancakes14 that later evolved into a collaboration with her brother, Fernando, under the name V.15 She also has done television work for Fox Sports in Argentina.16 Her official website shows her in low-slung tight pants and a tube top, and she currently posts on Twitter under the name

       @VirginDaCunha.17 On Twitter and Facebook Da Cunha posts various pictures of herself, including in short shorts, swimsuits, tank tops and at least one sexually provocative pose.18

       
       

11. Virginia Da Cunha, IMDB, http://www.imdb.com/name/nm1135788/ (last visited May 1, 2013);

    Virginia Da Cunha, FACEBOOK, https://www.facebook.com/virginia.dacunha/about (last visited May 1, 2013).

12. Popstars: Argentina, IMDB, http://www.imdb.com/title/tt0309201/fullcredits (last visited May 1, 2013).

13. Leonardo Ibáñez, Bandana me hizo tirar por la borda various prejuicios, GENTE, http://www.gente. com.ar/nota.php?ID=6907 (last visited May 1, 2013).

14. Virgin Pancakes on Their Way to the U.S. Warped Tour, EMBASSY OF THE UNITED STATES: BUENOS AIRES, ARGENTINA (Feb. 11, 2009), http://argentina.usembassy.gov/vp_event.html.

15. V, http://www.vlive.com.ar/landing/ (last visited May 1, 2013).

16. Invierno Fox Sports 2011, Virginia Da Cunha, YOUTUBE.COM (Apr. 13, 2012), http://www.youtube. com/watch?v=MbatKi3sSRg.

17. See V, supra note 15; Virginia Da Cunha, TWITTER, https://twitter.com/VirginDaCunha (last visited

    May 1, 2013).

18. See, e.g., V Oficial’s Photos, FACEBOOK (Dec. 7, 2011), https://www.facebook.com/photo.php?fbid= 171227212974845&set=pb.164252130339020.-2207520000.1351206959&type=3&theater.

    In her lawsuit against Google and Yahoo, Da Cunha alleged that family members and friends told her that her name and photographs appeared in Google and Yahoo search engine results linked to, or used in, websites offering sexual content, pornography, escorts, and other activities related to sex

    trafficking.19 Da Cunha claimed this was done without her permission and was

    harming her career as a model, singer, actress and television personality.20 Da Cunha sought damages of 200,000 Argentine pesos (about $42,000) for material and moral harms, specifically damage to her rights of personality, reputation, and privacy.21 She also made a copyright-like claim that Google and Yahoo enabled users, without her permission, to download photos of Da

    Cunha and have them printed, enlarged, and modified into books.22 Furthermore, she asserted that the search engine results linking her to sex- related websites did not conform with her personal beliefs or professional activities.23

    
    

    Google and Yahoo both responded that Da Cunha had not alleged any wrongdoing on their part and that, even if she had been harmed, there was no causal link between that harm and their own activities.24 Buenos Aires-based Judge Virginia Simari issued an opinion in favor of Da Cunha on July 29,

    2009. Simari first observed that Google and Yahoo could filter from search results all references to pornography, erotica or sex in metatags.25 She then pointed out that Yahoo had a filter...