The Spanish Constitutional Court issued a decision, dated 7 July, regarding the applicability of the "right to be forgotten" in Spain (Rec. Amparo No. 2096-2016). The decision recognizes that the right to be forgotten may be extended to the de-indexation of a newspaper digital repository search engine. Therefore, when readers type a person's name into the newspaper search engine, the results would not show the newspaper article relating to that person. Nevertheless, where de-indexation is required, neither the article itself nor the names of the persons within it are deleted. The article would still be found if other search parameters (such as date or subject matter) are used in the newspaper's search engine.
This decision was reached as a result of balancing the freedom of speech and the right to be forgotten in a case in which the claimants, arrested for allegedly committing a drug trafficking crime, requested content removal and de-indexation. The Constitutional Court recognized that the news reported was not in the public interest and could cause disproportionate harm for the claimants. In this balancing exercise, it understood that modifying the article itself was not required to satisfy the rights invoked by the claimants as the availability of the article was indeed reduced by its de-indexation from the newspaper search engine. Other measures, such as anonymization, would entail a greater interference to freedom of speech, which would not be justified in this case.
This constitutes a landmark decision in Spain, as no previous ruling interpreted the "right to be forgotten" as the right to be de-indexed from a newspaper's search engine. Although the circumstances of each case may differ, this decision will be considered by other Spanish courts when analyzing this kind of legal problem.