Under the pretext of introducing the “Right to be forgotten” in Mexico, the Plenum of the Instituto Federal de Acceso a la Información y Protección de Datos (IFAI, Federal Institute for the Access to Information and Protection of Data) set a precedent for any person to demand the censorship of any kind of content available on the internet, journalists included. The resolution approved by the IFAI under unanimity, doesn’t only violate the Constitution, but also international Treaties and Conventions subscribed by Mexico, as well as it constitutes a regression in matters of freedom of speech and access to information. The verdict which sentences Google to delete journalistic information from its search engine, clearly favors the businessman, stockholder of the Estrella Blanca Group and contractor of the Federal Government, Carlos Sánchez de la Peña, as it is harmful to the Fortuna, Negocios y Finanzas magazine. Interestingly the alleged victim is an acquaintance of former president Vicente Fox and first lady Marta Sahagún
The victim and the family, “Fox’s friends”
The seriousness of the case
Inconsistencies of the IFAIMonths before ruling in favor of the pro-Fox businessman Carlos Sánchez de la Peña, the IFAI had refused to take any legal steps against the alleged unconstitutionality of the Federal Telecommunications and Broadcasting Law, related with the article nr 190 section 1, which declares mandatory for the licensee to collaborate in the geographic localization of people, invoking the protection of the privacy of the person involved.For several Human Rights organizations this precept violates flagrantly the right to privacy.“In the first place it seems important to outline that the geographical location in real time provided by communication devices constitutes a measure that interferes severely with the right to privacy of people, as far as the location data of a mobile device reveals highly sensitive data of the person”, stressed out on that occasion the Red en Defensa de los Derechos Digitales (R3D, the Network for the Defense of Digital Rights).On the other hand numerous voices warned in a similar way as they requested the IFAI to intervene in the form an action of unconstitutionality.The days and weeks passed by, and the institution waited until the last moment to discuss that issue. The response was a negative one: four out of the seven Commissioners voted against it.Having cast aside any defense by the majority of citizens, on the 27th of January –one day after that session-, precisely on the week dedicated to the protection of data, the same entity described in a communiqué, that the verdict against Google was a “fact without precedents”, as the IFAI had started “the legal steps to impose sanctions against Google Mexico, a subsidiary of the social network giant”.The institution is going through a crisis of legitimacy and this particular case was used to try to recover some, consider Carlos Brito and Luis Fernando García.“It is clear that the IFAI tried in an unsuccessful way to occupy the spotlight by using such an ostentatious case against a major company in order to win back some legitimacy after several controversial decisions made, being the foremost not having interposed an action of unconstitutionality against the Telecommunications and Broadcasting Law for violations of privacy in it”, said García.He remarks that “since then a certain sector of the population sees the IFAI as an institution which hasn’t lived up to its responsibilities, that hasn’t managed to defend its autonomy and that is trying hard, also with the language used in the communiqués, to wash their hands. Nonetheless they didn’t wash them, as they stained themselves with soot.”The main difference being that in the case of Carlos Sánchez de la Peña vs Google, as a matter of fact against Freedom of Speech and Access to Information, the decision was made under unanimity.
Google, a negligent defenseFaced with the request of having to delete his personal data, put forward by the businessman and government contractor Carlos Sánchez de la Peña, the IFAI urged Google Mexico to issue a response.During the trial Google Mexico did not defend the case as being a matter of Freedom of Speech nor of Access to Information. Instead it contented itself of weathering the problem reassuring that it is not “the legal owner in charge of providing nor administering the operations of the research engine services Google” (sic). In other words according to the company, the research engine is “provided” by Google Inc., with its headquarters in the United States. Therefore it was not in a position to attend the request of Sánchez de la Peña.This was also the argument that the IFAI tried to disconcert, which by the way didn’t see any issue of fundamental rights as well. The institute merely focused on proving that Google Mexico is a subsidiary of Google Inc. and that it handled personal data. For their part the legal area of Google Mexico didn’t deepen further into the discussion of the public interest of the personal data at issue: the name of the transport businessman.
What is next: “deleting” journalistic works: Commissioner Kurczyn-Could any person show up and say:” Well, the press release you wrote 3 years ago, I need it to be erased”?-Exactly, that is right.-And what about the responsibilities towards the readers?-Well, you read it, it’s done.-But the wealth of mass media is mainly due to their newspaper archives…-You may store them, you may keep your archives, you may preserve them, but if someone arrives and says: “You have an interview that I granted to you that day and hour, a year has passed since, I want you to erase it”. Then you will have to erase it.These responses correspond exactly to the Commissioner of the IFAI Patricia Kurczyn. The reporter that registered those concepts outspoken by the Doctor in Law was Ernesto Aroche Aguilar, who according to the ideas expressed by Dr. Kurczyn, maybe someday will have to delete that interview granted by the current Commissioner of that Institute.“This is very serious. This is very serious”, repeats himself the attorney Luis Fernando García, with disbelief and a combination of annoyance and sarcasm. “The Commissioner Patricia Kurczyn having said that (the journalistic work) has been published now, and that people have already read it, this is very serious”.“In a country where independent journalism has cost blood, where it costs lives, where journalists disappear, this kind of initiatives do not spare on the importance of journalistic work. (Public servants) that volunteer to be an instrument of censorship that only responds to certain private interests, will always be something despicable”, considers Dr. Octavio Islas.The Commissioner does not understand the meaning of Freedom of Speech, remarks García. Inasmuch the political Constitution, Inter-American Court of Human Rights as well as the Universal Declaration of Human Rights settle deliberately and without any doubt, that the Freedom of Speech includes the right to investigate and receive information and opinions, and to spread it by any means available.None of the latter matters, as for the Commissioner Patricia Kruczyn any interviewee or aforementioned person (in the event of not having granted that interview), could demand to “delete” any journalistic work in which it may appear.Contralínea asked for an interview with the Commissioner Kurczyn, no response has been received yet.