Peru's Constitutional Court Ruling on the 'Right to be Forgotten': An Analysis of Press Freedom and Proportionality

• The Peruvian Constitutional Court (TC) has reignited the debate over the 'right to be forgotten' after ordering the removal of three news articles related to the 'Orellana case'.
• While protecting an individual's honor is constitutionally valid, critics argue that permanent deletion violates the principle of proportionality and threatens freedom of the press and historical memory.

Legal Conflict and Proportionality

• The case pits Article 2, paragraph 7 (protection of honor and privacy) against Article 2, paragraph 4 (freedom of information and the press) of the Peruvian Constitution.
• Permanent deletion is the most restrictive measure for information rights; the court failed to consider less intrusive alternatives, such as:
  • Updating articles to reflect later exonerations.
  • Ordering search engines to de-index the content.
  • Utilizing anonymization as an exceptional measure.

Conflict with Domestic and International Law

• Peru's Personal Data Protection Act (Law No. 29733) already provides safeguards for journalistic activities, including exceptions for public interest and historical documentation.
• The ruling diverges from international standards established by the European Court of Human Rights and the Court of Justice of the EU, which distinguish between the responsibilities of search engines and the historical protection afforded to digital newspaper archives (e.g., Google Spain, Hurbain v. Belgium).

Institutional Implications

• The precedent sets a concerning model for the Peruvian digital press, potentially leading to:
  • An increase in legal challenges seeking the removal of old news stories.
  • Diminished investigative journalism and increased self-censorship.
  • Fragmentation of historical digital archives.
  • Reduced public access to information of significant interest.