Abstract: The author examines Argentina’s legal standpoint on the « right to be forgotten » and the state of affairs from the national perspective.
To this date date, Argentina lacks a legal platform to address whether or not Internet intermediaries are responsible or not for the content available within their network and the role of the “right to be forgotten” within this framework. This has created a legal gap that has generated an uneven atmosphere which can be exemplified through the various precedents within the current legal history of the country.
Through the Supreme Court’s decision in the Rodriguez case, which establishes that research engines (Internet intermediaries) are not responsible for the content that they upload to their networks, it was understood that there was no sanction required for the intervention that these engines provide in legal where they are rights being affected. It is argued that due to the nature of the activity, which corresponds strictly to the provision of information – independently of its content- no attribution of responsibility for the damages should be enforced since it exceeds their operations; excluding situations where the damage has been properly informed and not been addressed.
Prior to the « Rodriguez” ruling, the « right to be forgotten » had been previously approached by lower courts in the « Bluvol » and « Carrozo » cases where a different perspective than the one issued in the “Rodriguez” case was implemented. In the first instance of the « Bluvol » case, the court applied an objective liability system that was later dismissed in the following legal instances under the consideration that no one can answer objectively for the unlawful conduct of third parties. On the other hand, in the « Carrozo » case, the two Internet intermediaries involved were ordered to compensate the plaintiff, under the rationalization that they were legally responsible for the content exposed within their site because their role was considered as an engagement of hazardous activity. Even in the « Da Cunha » case, the courts applied a different perspective by which the lack of remedy of the search engine once proper notification was established was sufficient for the subjective attribution of responsibility.
In spite of the aforementioned contradictory positions and the legal problematic regarding the interpretation of the « right to be forgotten », some regulation attempts have surfaced. Since 2006 there have been several bills that tried to regulate the « right to be forgotten » on a smaller scale by attempting to warrant user rights. Through this broad framework approach, an attempt has been made to find a generic framework for the use of the internet, which would indirectly encompass the « right to be forgotten » legally.
Finally, the author analyses the connection between freedom of expression and the right to express oneself in the Internet; considered to be implicitly fostered within the concept of freedom of expression. Furthermore, conclusions based on the collective factor of these rights and the legal necessity to warrant for the freedom of information and the formation of public opinion are exposed.
Suggested citation: , Juan G. Corvalán The “right to be forgotten” in Argentina, e-conference on the Right to be Forgotten in Europe and Beyond, June 2017, Blogdroiteuropeen,
Juan G. Corvalán is a lawyer graduated from the University of Buenos Aires, Doctor in Legal Sciences and is currently a Postdoctoral Degree candidate at the University of Sorbonne/Paris 1. He has a Postgraduate Degree in “Public Administration and Administrative Law” from the University of Salamanca (Spain), and has a specialization in Tax Law by the Austral University (Argentina). He is also an Administrative Law professor for both the undergraduate and postgraduate programs of University of Buenos Aires. He is a member of the Buenos Aires’ National Academy of Law and Social Sciences, the Argentinean Association of Comparative Law and the Argentinean Association of Administrative Law. He has served as a Judicial Officer at the Federal Administrative Law Courts, as the General Director of Legal Affairs for the City of Buenos Aires’ Ministry of Health, as Manager of Legal Affairs at the Consumer Protection and Defense General Directorate of the City of Buenos Aires’ government. He is an Administrative Law and Taxation´s judge for the City of Buenos Aires, designated after a public competition comparing opposing positions and backgrounds, and he currently serves as Deputy Attorney General on Administrative Law and Taxation before the Buenos Aires’ Superior Court of Justice. He is author of the following books: «Objective Conditions of Punishability» (Ed. Astrea), prefaced by Eugenio Zaffaronni; «Administrative Law in Transition» (Ed. Astrea), prefaced by Juan Carlos Cassagne; «Constitutional State and the Division of Powers» (Ed. Astrea), and “Roots of the State’s Discretionary Power”, prefaced by Alberto Bianchi. He is currently the Director of the DPI Journal (Derecho para Innovar) and has published more than 50 articles within Argentina.