The IFAI rules out against Freedom of Speech

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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

Who would have thought, that Carlos Salinas de Gortari (former president of Mexico) or his brother Raúl, Elba Esther Gordillo (former president of the National Union of Education Workers), or Amado Yáñez (former Director of Oceanografía), or Arturo Montiel (former governor of the State of Mexico), and if he was alive, even Arturo Durazo “el negro” (former Chief of Police of Mexico City), anyone could request the IFAI to sentence the research engines on internet to delete the links related to any journalistic work that may lead them to any grief.
The past 26 January the IFAI set a precedent by resolving the controversy put forward by the businessman against Google Mexico (and implicitly against the magazine Fortuna). Such is the seriousness of the verdict issued by the institution, which should safeguard the right to information, agree experts.
All board members under unanimity agreed by raising their hands in the Plenum to resolve the file PPD.0094/14 in favor of the businessman Carlos Sánchez de la Peña, whose connections of friendship and business interests with the Fox-Sahagún family had been uncovered by the Fortuna magazine.
This publication had revealed the gifts offered by the Sánchez Alcántara family, major stakeholder of the Estrella Blanca group to the Foundation of the then first lady Marta Sahagún; as well as the benefits of that friendship with the presidential couple: contracts, exclusive invitations right up to rescuing their economic emporium with public funds.
This journalistic investigation published in 2007, informed of fraud accusations against Salvador Sánchez Alcántara and sons, and among them Carlos, who has been favored now by the IFAI (“Fraude en Estrella Blanca alcanza a Vamos México”, “Fraud in Estrella Blanca reaches Vamos México”, February 2007, Fortuna. Negocios y Finanzas, issue No 49).
Some years after on the 9th of September 2014 the IFAI received a petition from the person involved in the friendship-corruption case with the Fox-Sahagún family:
“I attentively request to proceed in the cancellation, blocking and suppression of the given information (including my name) off the Google research engine, which is where (the links to) the publications are on display.”
According to Sánchez, the information provided by three links, which show up when typing his name in Google, affects “his intimate sphere (honor and private affairs)” as well as his “current financial and commercial relationships”.
“It is information related with financial, proprietary and legal aspects”, the solicitor added.

The victim and the family, “Fox’s friends”

It was the dawn of a six year mandate under the PAN party. Henceforth there were new circles as well as new opportunities to do business with the newly established rulers. “Back in those days (Salvador Sánchez) Alcántara (father of Carlos Sánchez de la Peña) was taking pleasure of his friendship with the presidential family and that was the main “argument” used even before minor associates” (“the good star of Vicentillo”, 1st of June 2006, Contralínea issue No 56).
The liaison between both families was Vicente Fox de la Concha “Vicentillo”, who served as an “adviser” and vice president of the emporium. Thereafter grace fell down to the Estrella Blanca group: from being on the brink of bankruptcy because of debt, it became the most benefited transport operator from the federal government and it consolidated its power and expansion with the son of the then president’s son as a warranty.
Such was the proximity between the businessmen and the inhabitants of the presidential residence of Los Pinos that they even shared the media benefits of the charity program launched by the foundation in charge of the first lady Marta Sahagún.
In the journalistic investigations which Sánchez de la Peña requested to be cancelled, blocked and erased, there is evidence of “donations” done by Estrella Blanca to cover up the philanthropy of the president’s spouse: run down buses and millions of Mexican pesos.
The boom arrived with contracts worth hundreds of millions of pesos with several federal dependencies, a certain laxity in regards to taxes and favors done by the Instituto de Protección al Ahorro Bancario (IPAB, Institute for the Protection of Bank Savings), the inheritor of the former Fondo Bancario de Protección al Ahorro (FOBAPROA, Banking Fund for the Protection of Savings) to restructure its debt.
However the alleged earnings did not reach all of the shareholders of the group, as they remained within the accounts of Sánchez Alcántara and his sons. Therefore several associates of Estrella Blanca filed a lawsuit for alleged fraud worth more than a billion pesos against him.
Those links that lead to that information which “affects the most intimate sphere” of Sánchez de la Peña –as his father has passed away- are the ones that the IFAI has sentenced to be deleted from the Google research engine.

The seriousness of the case

“Carlos Sánchez de la Peña used the right of the protection of personal data in a distorted way, stating that his name is being used without his consent”, said in an interview to Contralínea Luis Fernando García, attorney of the Red en Defensa de los Derechos Digitales (R3D, Defense Network for Digital Rights). “Extrapolating the logic of the IFAI, this would mean that any given journalist would have to ask for the permission to anyone, whom he or she may mention in his journalistic work. This is something ridiculous.”
 The so-called “right to be forgotten” doesn’t actually exist within the Mexican legislation. It is not a concept based on legal grounds. Henceforth the solicitor claimed in the first instance an offence of honor, explains the attorney of R3D.
“If the gentleman considered that the writing published in Fortuna affected his honor and reputation, he should have gone to a court to prove it, instead of using the legislation on personal data protection to settle his alleged damage of honor. To do this there are other procedures, such as the lawsuit for defamation”
Meanwhile Sánchez de la Peña as well as the plenum of the IFAI, which admitted him the right, based their beliefs upon the similarity of his case with the resolutions issued by the European Court of Justice (ECJ) in the case María Costeja González. During the discussion and once the verdict made, Fortuna magazine was not notified of it.
“It is a similar case, as it originated from the fact that when Mr. Costeja was researched in Google, the results would lead to certain articles dating back to 1998 in the La Vanguardia newspaper, under which there was an announcement of an auction sale of a building, related with the seizure because of debt.(…). The ECJ ruled in favor of Mr. Costeja and sentenced the removal of these hyperlinks off the Google research engine”, wrote the attorney Gisela Pérez de Acha.
“Google is a card index within a library. It is not the publisher of that book, it just tells you where you can actually find it”, explains Luis Fernando García. “Therefore the IFAI shouldn’t have admitted that Google was dealing with personal data, a name in this case, when in reality it is giving away the link to get to that article”.
The IFAI didn´t perform the correct deliberation of the information contained in these links, insists the attorney. “In this case it should have deliberated between the impacts to public interest against the right of a person to cancel personal data. It never did so.”
Such an exercise was done in the resolution of the ECJ, which was based upon the organization in charge of Ximena Puente de la Mora, in order to admit that Sánchez was right. “In the paragraph 97 of the Costeja Sentence that the “right to be forgotten” would not apply in the event that the concerned person was a public one, as there would be “interference” in his fundamental rights, thus being justified by the public interest to have access to the information dealt”, comments Gisela Pérez de Acha
The latter point was absolutely ignored by the Plenum of the IFAI. In the facts there was no mention about the journalistic information it was censuring, for example about the businesses of the solicitor under the protection of his acquaintances with public servants of the highest level, which could be of public interest.
None of the Commissioners even considered it, despite having recalled and taken notice of the ruling of that matter, the assumptions established in the articles 26 and 34 of the related law, under which the responsible company (Google) “will not be liable to cancel any personal data”. The fifth division of article 26 is categorical in this regard :”( When the data) shall be necessary for realizing a public function.”
In this particular case the very name of the implicated person is needed in the journalistic text, when unwrapping liaisons with public powers.
While transmitting information through journalistic reports, the rights to Freedom of Speech and to Access to Information, enshrined in the political Constitution of the United Mexican States, the American Convention on Human Rights and the Universal Declaration of Human Rights, are being exerted, illustrates Carlos Brito member of R3D.
Despite the fact of the mention of the public interest in the law, the Commissioners scorned it.
Notwithstanding the IFAI did have knowledge in regard to the information concerning the appellant, and so it is put into words on page 27 of the verdict, in which it is stated that after inspecting the web site of Fortuna, it was proven that “(there is) the existence of press releases containing information related with crimes of fraudulent administration of the transport company Estrella Blanca, in which there is a mention of the name (of Sánchez de la Peña)”.
Thereafter the Commissioners knew who Carlos Sánchez de la Peña and late Salvador Sánchez Alcántara were, as well as their relationships with the Fox-Sahagún family, and their presidential power they were taking advantage of. As the Plenum of the IFAI was ruling out the verdict under unanimity, they knew that that particular link lead to a journalistic investigation, which not only accused Sánchez Alcántara and Sons of fraud, but also dealt with public funds (FOBAPROA, IPAB) used to restore the finances of whom several years later, would cry out for his honor and the health of his business.
All of this was scorned by the same institution, ironically born with the slogan of being the warrant of the Access to Information for citizens. “(The IFAI) simply established a kind of limbo, where it doesn’t stand up to its responsibilities”, wraps up Octavio Islas, Doctor in Social Sciences.
The IFAI could and should have foreseen that it had to resolve that issue already under the light of public interest: the right to know about businesses, outside the influence and the public funds used to keep them profitable.
The entity “took out of context three paragraphs of the European verdict, still under discussion by many within the same Court, and brought it to the Mexican context, where a totally different law (of protection of personal data) is enforced. Nonetheless these differences were not taken into account”, adds Carlos Brito.
 “The IFAI has been testing the ground. There is a great lack of knowledge regarding the jurisprudence on that matter. There is certain backwardness in the expertise to deal with this complex type of situations”, commented in an interview given to Contralínea the professor and researcher Octavio Islas.
“In Europe a “right to be forgotten” has indeed been established, but with limitations and basic criteria that have to be met, including a test of public interest, the latter not being  taken into account in this case. Not only did they copy a legal concept, but they did it quite badly. That is something (the Commissioners) know, it wasn’t a mistake.
“This is a serious precedent. In the event of (such a resolution in an Amparo lawsuit) being confirmed, this would leave open the possibility of more cases of this kind, and substantially change the way information is made available through internet in Mexico.”
Not to mention that in a context of upcoming elections, where potential candidates would be the first to be interested in deleting everything that could stain their public image, paraphrases Luis Fernández García. “It is not about the “right to be forgotten”, rather the fear of being remembered.”
Meanwhile having ruled out that verdict, the IFAI has already received at least twenty new requests for deleting data. “When it is said that the IFAI had opened Pandora’s Box, we are not only talking about the number of cases that could follow, but rather the inherent risks involved, which already occurred in Europe with disastrous examples, such as a politician wanting to erase his administrative records while in office, or a pedophile intending to delete his legal charges, as well as it is applied to mass media like The Guardian or El Mundo”,writes José Flores, member of the directive board of Wikimedia Mexico.
The issue is now on the table and there is clear evidence of backwardness on a legislative level related with the right to an image, the right to Access to Information and the rights to Protection of personal Data, recalls Dr. Octavio Islas. Henceforth, “instead of the Commissioners being worried about cleaning up the IFAI and putting their people in, raise their salaries and benefits, they should have prepared themselves to the complexity of the discussion”.
“(With a verdict) like this (José Luis) Abarca (officially accused of being implicated in the forced disappearances of 43 students in Ayotzinapa in the State of Guerrero) could ask to be removed (of all reports containing his name) from the research engine…Murillo Karam…anyone could”
Contralínea made a formal request to interview Ximena Puente de la Mora, Commissioner and President of the IFAI. Up to the moment of edition, no response has been received yet.

Inconsistencies of the IFAI
Months 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 defense
Faced 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.
 Mauricio Romero @mauricio_contra
(Translated by: Axel Plasa)
  Contralínea 423 / 08 – 14 Feb 2015


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