July 7, 2023 marked 15 years since the murder of Nagore Laffage, 20 years old. Her death shocked the citizens of Pamplona, immersed in the Sanfermines, and represented a turning point in public awareness about sexist violence and, especially, about sexual violence during the festivities. The man who killed her is José Diego Yllanes, who was 27 years old at the time and a Psychiatry resident. He was sentenced to 12 and a half years in prison for the crime of homicide aggravated by superiority. Once the prison sentence had been completed, he requested both Google LCC and the Spanish Data Protection Agency to block several links to press reports that contained information about the events for which he was convicted and his subsequent conditional release. A request that both entities rejected and that he took to court. Now, the Contentious-Administrative Chamber of the National Court has rejected the appeal because it considers that freedom of information and expression prevails over the so-called right to be forgotten.
As stated in the sentence, the plaintiff has alleged that “he was convicted of homicide more than 13 years ago and, although he did not commit any sexual crime against the victim, different media outlets stated that he also committed the crime of rape.” and sexual assault, after she refused to have sexual relations.” And he also assures that “such data is inaccurate and erroneous and there is no reason for its disclosure to third parties, as can be deduced from the proven facts of the criminal sentence.”
Furthermore, the plaintiff defends that said news included erroneous personal data. For this reason, and considering that this type of information violates his fundamental rights to privacy and data protection, he asked Google to respect his right to be forgotten. After the company's refusal, he went to the Spanish Data Protection Agency (AEPD), requesting the start of a rights protection procedure against Google. The Agency also rejected his request. Both entities argue that the questioned publications are of public interest. Specifically, Google LCC defends that “they present public interest by dealing with a homicide and the brutal circumstances in which it was committed.”
They add to their arguments that “currently, the NL crime is one of the symbols of the fight against sexist violence in Spain and its public relevance was made evident in 2010, when the documentary N. was released, which obtained up to five nominations for the Goya awards; In 2021, several media outlets reported on the rallies held in tribute to her deceased on the anniversary of her death.
In the event that there is erroneous data, they defend, the appellant “may choose to exercise a right of rectification or updating before the editors of these publications, but in no case should Mr. Y. be guaranteed the right to be forgotten, that is, blocking access to news and opinions based on searches by name.”
In its ruling, the First Section of the Contentious Chamber weighs the rights in conflict and concludes that the right to freely receive information and freedom of opinion must prevail over the protection of personal data. In this case, he considers that the homicide for which he was convicted had a special impact due to the circumstances of the event and the moment in which it occurred, “and continues to be the subject of attention of the media that, on occasions, has associated it with other events punished as crimes against the sexual freedom of the victims that occurred in the same town during the celebration of the patron's festivities, events that cause particular repugnance in society and that can be considered of general interest.
Yllanes has not only requested the deletion of links obtained from a search with his name and surname, but has also tried to eliminate those obtained from terms such as “the murderer of Nagore Laffage” or “the man who killed Nagore Laffage ”. The plaintiff considers that the information associated with these links is inaccurate, so he proceeds to recognize the right to be forgotten, without the need for a prolonged period of time to elapse. The Chamber has not admitted his request considering that, although they may lead to results on the facts that concern him, they are not the plaintiff's personal data. To argue its decision, the court refers in the resolution to article 93.1 of Organic Law 3/2018 on the Protection of Personal Data and guarantee of digital rights, which establishes that it must be a “search based on your name.”
According to the ruling, the court believes that the plaintiff has failed to prove that the information is “manifestly inaccurate.” In the opinion of the Chamber, these news items are focused on the crime of homicide declared in the criminal sentence and the fact that value judgments are made in them, mentioning other sexual assaults committed in the same town during those parties, does not make them inaccurate. the information referred to.
The judicial resolution refers to the doctrine of the Supreme Court, the Constitutional Court and the Court of Justice of Luxembourg and concludes that the data processing carried out by the Google search engine is initially lawful, “given the content of the information, the existence of a process criminal in which the plaintiff was convicted, the nature and circumstances of the facts and the short time that has elapsed, continue to be necessary in relation to the purposes for which they were collected or processed.”
Therefore, the various links, whose blocking is requested, would be protected by the fundamental right to freedom of expression, included in article 20 of the Constitution, “which includes, as has already been said, criticism of the conduct of another, even when it is insipid and may annoy, disturb or displease the person it is addressed to, since this is required by pluralism, tolerance and the spirit of openness of democratic society.”