In unprecedented ruling, Chilean Supreme Court decides the right to information overrides the right to be forgotten

In a unanimous and unprecedented ruling in the country, the Supreme Court of Chile defended that the right to information overrides the right to be forgotten. The court decided in favor of the Center for Investigative Reporting, CIPER, against a doctor's request to remove a report about medical malpractice from CIPER's site.

The article, written by journalist Gustavo Villarrubias and published on March 4, 2013, deals with the use of an abortive pill prescribed by gynecologist Víctor Valverde to induce the delivery of a pregnant patient at the end of November 2012.

According to CIPER’s report, the doctor allegedly planned to leave for a trip five days before the estimated delivery date of Patricia Gómez, and insisted on inducing the childbirth without revealing his reasons and while putting the lives of the patient and her baby at risk.

"The ruling of the Supreme Court in the case of Dr. Víctor Valverde, was a confirmation that when a good journalistic investigation is made, even the 'untouchables' (as is the case of certain doctors here in Chile) cannot be hidden behind their influence or institutional protection," Gustavo Villarrubias told the Knight Center. "As much as they have great law firms, the supreme court came to confirm that a rigorous investigation, such as the one published by CIPER, should not only not disappear, but that, moreover, it should remain in time as a right to information," he commented.

The pill Misoprostol, which was used by Valverde for Villarrubias’ then-pregnant wife, is banned in Chile to induce deliveries, as the CIPER journalist’s report confirmed with the Institute for Public Health (ISP).

"So imagine what [this] means [to me] as a journalist of CIPER, and beyond the particular topic, that years later, a higher court of justice comes to confirm that the journalistic investigation was well carried out, with the difficulty in this case of being ‘part and parcel".

The Third Chamber of the Supreme Court said in its ruling from Nov. 6, 2017, that the well-known doctor Víctor Valverde, a gynecologist at the prestigious Clínica Alemana in Santiago de Chile, had no support to maintain that the report published by CIPER had violated his guarantees and freedoms. The ruling said that the doctor’s argument had no legal basis, given that the information was proven “true and of public interest”, and contained proven facts, the sentence said.

The legal recourse –based on the exercise of the right to be forgotten and respect for the person and private life– that Valverde presented against CIPER four years after the report was published reached the Supreme Court after having been previously rejected by the Santiago Court of Appeals.

The right to be forgotten is a legal concept adopted in certain countries in recent years so that people who feel affected by online publications have the ability to demand that the content be deleted from websites, search engines or social networks.

According to Villarrubia, both the Medical Association of Chile and the German Clinic "lent a shameful defense" to the doctor, even when they knew the facts and how they happened. Even, Villarrubia added, they managed to get a major TV channel in Chile not to televise a report about this case. However, Valverde was eventually dismissed from the medical center, according to site BiobioChile.

On July 31, 2017, the Court of Appeals said in its ruling that the report revealed a fact of public relevance, in which freedom of information was above the right to honor, due to the right of citizens to a democratic system of knowing information of public importance, CIPER reported.

On a personal level, Villarrubia said that he and his wife, as a family, believe it is important that the request to delete the report has not been accepted, because "thanks to the article, this has assured that many families in the last five years have avoided other gynecologists doing the same to them."

The right to be forgotten, which Valderde tried to make use of, has generated a great debate worldwide among international organizations that defend freedom of expression and information.

Villarrubia said that this ruling has an even more global component. "The right to be forgotten is in the background when the right to information is more important," he said.

Although the right to be forgotten does not appear as such in Chilean legislation, its interpretation is based on Article 19, paragraph 4, of the political constitution, which guarantees "respect and protection of private life and the honor of the person and his family." It is also protected in the Universal Declaration of Human Rights.

Almost a year ago, in January 2016, the Chilean Supreme Court applied the right to be forgotten by accepting an application for protection by which it ordered a news article about a criminal act published more than ten years be removed from internet search engines. This article allegedly affected the honor of a retired major in the armed forces.

CIPER wrote that the Inter-American Press Association (IAPA) spoke on the right to be forgotten this year, regarding a case that is pending in the Court of Justice of the European Union. It is a dispute between Google and the National Commission for Computing and Liberties (CNIL) of France. The CNIL wants Google to eliminate certain information from its search engines around the world when the government of a country requests it.

For the IAPA, this right to be forgotten, which allows content to be de-indexed and eliminated from search engines and digital media that are legally challenged by third parties, represents a restricted vision of freedom of expression that affects the right to information that all citizens have, and that promotes censorship.

Ed. note: Rosental Alves, founder and director of the Knight Center for Journalism in the Americas, is a member of CIPER’s board of directors.

Note from the editor: This story was originally published by the Knight Center’s blog Journalism in the Americas, the predecessor of LatAm Journalism Review.