The Supreme Court has decided to endorse journalistic information based on what is known as the ‘Falciani list’ and relating to a former high-ranking Gilead laboratory official. The civil judges reject the last appeal of an executive of the pharmaceutical company, to whom the courts came to recognize compensation of 120,000 euros for a report broadcast on La Sexta. In the information it was said that the executive had a family account in the Swiss bank HSBC, known thanks to the list of tax evaders delivered to the Spanish authorities by the computer scientist Hervé Falciani and that, by criminal means, has been accepted as evidence repeatedly.
Computer scientist Hervé Falciani arrived in Spain in 2013 with data on thousands of clients of the HSBC bank, among whom were potential tax evaders in Spain. The Justice of our country refused to hand it over to the Swiss authorities and, meanwhile, the Spanish began to use the data from the ‘Falciani list’ to prosecute in court those who for years had hidden their fortunes in Switzerland behind the back of the Treasury.
The names on that list ended up transcending and in February 2015 the news of La Sexta broadcast a report on an account in Switzerland with almost 2.7 million euros linked to the family of an executive of the Gilead laboratories, marketer of the drug Sovaldi against Hepatitis C. An information published in full controversy about the distribution of this medicine by the health authorities in our country.
The information from the television network explained that María Coronado Galdós was a ‘senior product manager’ at Gilead, in charge of medicines related to Hepatitis. She also pointed out that “she, her father and her brothers had 2.6 million euros in HSBC through a Panamanian company” that her father opened and that she regularized the executive with her brothers years before. Finally, the report highlighted that at that time the Gilead company refused to lower the price of the medicine necessary for Hepatitis C patients.
The aforementioned took the case to court alleging that the information issued by the chain was not true, that she had linked her position in Gilead with that money and that Swiss bank account and that, finally, she had revealed personal data of both her and her family. And at first, the 35th court of Madrid agreed with him and sentenced the television group AtresMedia to pay compensation of 120,000 euros.
Already in second instance, the Provincial Court of Madrid annulled this economic condemnation. In June 2021, the judges already explained that the information from the ‘Falciani list’ was truthful and in the public interest. “We are faced with information that held public relevance,” said the Madrid Court. Among other factors, he highlights, at that time there was a large amount of news about the Spaniards who were part of that same list, their balance in the accounts, the controversy over whether or not the regularization was a tax amnesty, or also the legal proceedings against regard.
That second sentence did not find either that the information had been manipulated or that the headlines had been “disproportionate”, nor that there had been an invasion of the privacy of the appellant or her relatives. A decision that has just been confirmed by the civil chamber of the Supreme Court after rejecting, with the support of the Prosecutor’s Office, Coronado’s last resort, which can still take the case to the Constitutional Court.
The news that La Sexta issued, confirms the Supreme Court, was of general interest. “The information related to the Falciani list, with the ownership of an account with a high balance in a Swiss bank owned by a company located in a tax haven and of which the plaintiff and her relatives were beneficiaries, is of general interest The appellant admits it and the question does not require additional explanations, due to its obviousness”, settles the civil room with Rafael Sarazá as rapporteur.
Regarding her status as an executive or director of Gilead at that time, the Supreme Court explains that the television channel obtained her professional information from LinkedIn and that this information “is based on the data that person has incorporated into a website intended precisely to report on the professional aspects of those who appear in it” so that “it has reasonably fulfilled its duty of diligence”.
This is not the first time that the list of potential tax evaders revealed by Hervé Falciani passes through the hands of different chambers of the Supreme Court. The criminal court, for example, endorsed at the time that this information was considered legal evidence in a trial for tax fraud. The judges confirmed in 2017 a six-year prison sentence for a Spanish businessman who hid more than 10 million euros in bank accounts in Switzerland behind the back of the Spanish treasury. The ‘Falciani list’ made it easier for the Tax Agency to put a magnifying glass on their accounts and discover the fraud.
The Supreme Court recognized in this sentence the illegality of the origin of these data, obtained by Falciani illegally in Switzerland while working at HSBC, but concluded that this did not invalidate its value as evidence. When the computer scientist removed all those files from the bank, said the ruling, “he did not do so as an agent at the service of the Spanish public authorities interested in punishing tax evaders. Nor were they computer files whose delivery had been negotiated between the transgressor and the Spanish agents”.
That decision was ratified two years later by the Constitutional Court while the judges continued to confirm sanctions and sentences to the tax evaders who appeared on that list. But the document brought to Spain by Hervé Falciani had also been endorsed from the point of view of one of the ramifications of information: the right to be forgotten. The same civil chamber of the Supreme Court refused to apply the right to digital oblivion to the former prosecutor of the Pujol family for a 1991 crime, for which he was pardoned in 2009.
This sentence, issued in 2018, explained that the protagonist of this information that almost three decades later was accessible through a Google search but that had not ceased to be of public interest. The judges took into account, for example, that he had appeared in an investigation commission on tax fraud in the Parliament of Catalonia, and that in addition his inclusion in the ‘Falciani list’ “put him back in the public eye “.
