The Supreme Court plans to outline its jurisprudence on the right to digital oblivion. The objective is to establish what consequences the fact that it is initiated not by the affected party, but by a relative when he or she has died, has on a right to be forgotten process. The case that will serve the judges to broaden their doctrine on this matter is that of a descendant of an ensign who participated in the Francoist process for the death sentence of Miguel Hernández, who for years has been unsuccessfully suing the administration so that his father stop appearing on Google as secretary of the Military Court that signed the sentence of the poet from Orihuela.
The military processes against the poet Miguel Hernández: irregularities, missing endorsements and an ‘anonymous’ protagonist
Further
Antonio Luis Baena Tocón was judicial secretary of the Francoist Special Press Court that instructed the procedure against the poet. A procedure that ended with the death sentence of Hernández, who died of tuberculosis in the Alicante prison in 1942. Decades later, his son demanded that Google make a series of links and information disappear in different media that explained the relationship that Baena Tocón had had with the instruction that had led to the death sentence.
The National Court, as reported by this newspaper last year, rejected the claims of the descendant of this deceased Franco administration official. The contentious-administrative judges highlighted, first of all, that the information that he intended to withdraw “has an unquestionable public interest” and an “undoubted public relevance” because it affects one of the most important figures of Spanish poetry of the last century. That public interest in information, the sentence also said, had not declined over time, “proof of this being its repercussions in the media” when the lawsuit was filed in 2019.
The case has now reached the third chamber of the Supreme Court, which at the beginning of February admitted the appeal of Baena Tocón’s descendant for processing and left the case in the hands of its third section, explaining what interest the matter had at a jurisprudential level: no simply the merits of the case, but also to determine the incidence of a relative making this type of claim on behalf of a deceased person and what consequences it has in a case in which, like this one, the information is truthful and of public interest. In this case, the request is made by the son of Antonio Luis Baena Tocón on behalf of his father. The objective, says the Supreme Court, is “to clarify the incidence of people linked to the deceased for family reasons or in fact, as well as their heirs in the work of balancing the right to be forgotten and the right to information.”
In its admission order, the Supreme Court explains that they have already handed down several relevant rulings on the right to digital oblivion. For example when in 2019 confirmed the right to be forgotten of a person who had been affected by inaccurate information due to a confrontation between hunters and SEPRONA agents in Galicia. Also when a year later he agreed with Google in a lawsuit brought by a businessman that he wanted to unlink his name from various news stories about a case of corporate espionage that, finally, was filed by the Justice after the pardon of those supposedly affected.
But it also explains that it is worth examining the case of Baena Tocón and the process against Miguel Hernández because it can help to iron out a fringe of the jurisprudence on the right to be forgotten that has yet to be clarified: what happens if the person complaining is a relative and the person affected by this information is already dead. “It is appropriate to admit the present appeal for cassation because it considers necessary a pronouncement of this Court that addresses the issue from the perspective of the people related to the deceased for family reasons or in fact, as well as his heirs in order to request access to the personal data of that and, where appropriate, its rectification or deletion”, says the admission order signed by José Manuel Bandrés.
Data of deceased persons
The resolutions in this case, consulted by elDiario.es, reflect what both Spanish and European regulations say. At the community level, for example, the European Parliament regulation regarding the processing of personal data establishes that the personal data of deceased persons are outside the norm: that is the responsibility of each Member State. And the Spanish Civil Code establishes in its article 32 that “the civil personality is extinguished by the death of the people”.
But there are other regulations, such as the Personal Data Law of 2018, which invite nuance according to the judges. This text establishes in one of its articles that the heirs of a deceased person can request access to the “rectification or deletion” of their data.
In the case of Miguel Hernández and the official who participated in the investigation of the Franco administration that led to his death sentence, the National Court understood that a relative has the right to request the rectification of the data of a deceased. “In short, the heirs and other people related to the deceased for family reasons or in fact are empowered to exercise the right of suppression (right to be forgotten)”, said the first sentence of the case.
