Causa nº 22243/2015 (Apelación). Resolución nº 36142 of Corte Suprema

Document type
Court Decision
Luiz Fernando
Marrey Moncau

The main case to reach the Chilean Supreme Court and involving a so-called “right to be forgotten” was an action requesting Diario El Mercurio to delist from search engines content relating the plaintiff to crimes of child sexual abuse, that would impede the claimant’s reintegration and would bring him serious psychological harms, violating his constitutional right to psychological integrity (Art. 19, 1) and to private life and honor (art. 19, 4).

Therefore, although requesting the publisher to delist the content from search engines, the case is not related to a data protection claim, but to the more traditional idea of rehabilitation or reintegration of the plaintiff to society, after having his name associated with a crime that took place more than 10 years before.

In its reasoning, the court recognized the passing of time as an essential element of the claim, pointing out to different legal provisions associated with this aspect (especially about financial data and criminal records). In this vein, the court affirmed that it is a worldwide trend to recognize the right to be forgotten related to reproachable conducts, either criminal, civil, or commercial, after a certain period, to allow the reintegration of individuals to society.

The Court avoided presenting the case as a collision of fundamental rights, indicating that the rights to honor and psychical integrity may overlap and be in conflict with the rights to inform and the freedom of expression in a particular moment in which the information is useful and necessary to society. However, after a certain period of time, the same information may become useless both to the individual who aims to live integrated to the community, and to the goal of pacifying the society.

After referring to the Colombian case T-277, the court decided against automatic access to content that conflicts with the individual's reintegration into the community, signaling implicitly that a concrete harm to the individual is an important component of the balancing between the rights at stake.

In this vein, to protect the private life of the plaintiff the court ordered El Mercurio to remove the content from its online archives.

Topic, claim, or defense
Defamation or Personality Rights
Privacy or Data Protection
Right to Be Forgotten
Document type
Court Decision
Issuing entity
Highest Domestic/National (including State) Court
Type of service provider
Search Engine or Index
OSP obligation considered
Block or Remove
Type of law