Balancing the Right to Inform and the Erasure of Personal Data

The Argentine Agency of Access to Public Information (“AAIP”), in its capacity as Enforcement Authority under Personal Data Protection Law No. 25,326 (“Data Protection Law”), dismissed a complaint demanding the erasure of personal data in a news story published by La Voz del Interior SA, which the complainant claimed was false and inaccurate.

The facts are as follows. The plaintiff lodged a formal complaint against La Voz del Interior to demand the erasure of her personal data (i.e., name, nationality, and age) from a news story published on the newspaper’s website on July 30, 2019, and which linked her to a drug case that was being tried before Misdemeanor Criminal Court No. 29. In particular, she demanded that her personal data be erased in accordance with Article 16 of the Data Protection Law on the basis that the news piece in question contained false and inaccurate information because the case had been dismissed. Therefore, keeping the news piece on the internet gravely harmed her mental health and, above all, her prospects for professional development.

La Voz del Interior rejected the request on the grounds that meeting the complainant’s demand would affect its right to free speech with respect to past events. However, it offered to include a link to her acquittal in the original news story. The plaintiff was not satisfied with the offer and appealed to the AAIP to seek an order for the erasure of her personal data.

In turn, the AAIP held that the right to erasure of personal data, as any other right contemplated in the Data Protection Law, is not absolute and ─citing Resolution No. 01/2020─, it sustained that the reason why the right to privacy and protection of personal data, in general, is not absolute is “because just as the Argentine Constitution protects the autonomy and privacy of individuals in sections 18, 19 and 43, it also enshrines other rights and guarantees of equal hierarchy and standing” whose value must be weighed on a case-by-case basis.

Among these restrictions to the right to privacy and to the protection of personal data, particular attention should be drawn to the fundamental right to freedom of expression, and its associated right to freedom of press, as embodied in sections 14 and 32 of the Argentine Constitution and in several international treaties. In short, the AAIP understood that “privacy laws should not hinder or restrict the investigation and dissemination of public interest information.” In this sense, the AAIP held that its interpretation is also supported by the Data Protection Law itself, which, in section 16, subsection 5, stipulates an exception to the right to erasure of personal data insofar as it indicates that “[e]rasure is not appropriate when it adversely affects the rights or legitimate interests of third parties or when there is a legal obligation to preserve the data.” Based on this provision, the AAIP found that forcing La Voz del Interior to erase the plaintiff’s personal data would have entailed a disproportionate restriction on the newspaper’s right to freedom of expression, with “consequences that not only [would have been] detrimental to [that] media outlet [...], but also [would have] potentially affected journalism and the general public whose right to freedom of expression includes receiving, consuming, and circulating information through the press and the internet; and therefore would have gravely affected the rights or legitimate interests of third parties (i.e., both the newspaper and its readers) pursuant to section 16, subsection 5, of the Data Protection Law.

Furthermore, the AAIP sustained that La Voz del Interior’s proposal (that is, to link the acquittal resolution to the original story) satisfactorily mitigated the tension between the right to privacy and protection of personal data with the right to freedom of expression to the extent that it complied with the right to rectification or response under section 14 of the Inter-American Convention on Human Rights.

The AAIP concluded that in some cases the ideal solution is not to erase information, but to provide the public with more complete information, that is, with more layers of information.