Criminal proceedings and the right to be forgotten: until when can the personal data of convicted persons be published?

On 10 April 2024, the First Chamber of the Supreme Court handed down a judgment on the impact of the passage of time on information about a criminal conviction for a double murder.

The facts date back to 1984, when a legionnaire killed two people, pleading guilty to the double crime. This was reported in numerous media. One in particular published a report after  an interview given in prison by the convicted man.  The story included the prisoner's name and surname, as well as his photograph.

In December 2020, 36 years later, the same media recalled the event, publishing an extract of the interview carried out at the time, in such a way that the identity of the convicted prisoner reappeared, as well as the photograph taken in 1984.

This prompted the former legionnaire to file a lawsuit in May 2021, alleging violation of his rights to honour, privacy and self-image. In this lawsuit, he stated that he had served his sentence, his criminal record had been expunged, he had been reintegrated into society, and his current personal situation was being put at risk.

The first instance judgement, handed down on 19 January 2022 by a court in Olivenza, upheld the claim. The decision indicated that the consent given in 1984 could not be considered valid so many years later, and that the public relevance that the matter had had at the time had already disappeared, given the time that had elapsed.

Upon appeal, the Provincial Court of Badajoz upheld the appeal, rejecting the claim. It held, in substance, that freedom of information should prevail, considering that the matter was of general interest - criminal in nature - and that the media had been faithful to the truth of the facts. It was also stated that newspaper libraries are generally and publicly accessible.

The plaintiff lodged an appeal against this ruling with the Supreme Court, which resulted in ruling number 484/2024 of 10 April. This ruling ruled out the infringement of the plaintiff's right to privacy, as it considered that no data relating to his personal or family life had been made public, but only data relating to the criminal act. However, it considered that there had been an infringement of the appellant's right to honour and to his own image due to the renewed dissemination of his name and surname, as well as his image.

The infringement of his honour would have occurred because, although the information was still truthful, the requirement of general interest or public relevance had been lost in 2020. Nor was there any historical interest in the facts that would justify the indication of the person's identity. The same would apply to his image, which would be unnecessary and harmful to the plaintiff, as it would facilitate his identification.

The first sentence ordering the media to pay compensation of 18,000 euros is thus upheld, but certain claims relating to the removal of the plaintiff's personal data from the defendant's databases are not upheld, since this request was rejected at first instance, without being appealed, and therefore became a consensual ruling.

Commentary on the Supreme Court ruling

In order to be able to assess the limits of information relating to an old criminal proceeding, it is necessary to start, firstly, from the requirements applicable to a current criminal proceeding. This is because, only once the limits of information on current criminal proceedings have been determined, is it possible to determine what information capacity exists, in relation to the same facts, when a considerable period of time has elapsed since they took place.

In this respect, two distinct stages in criminal proceedings should be distinguished: investigation and prosecution. The investigation time is governed by confidentiality, and its knowledge is limited to the parties themselves. The proceedings of the investigation must not be accessible to the public until the opening of the oral trial. This is a guarantee of the jurisdictional function, in order to preserve the success of the criminal investigation. Even, exceptionally, and for a limited period of time - the strictly necessary - the secrecy of all or part of the investigation can be decreed with regard to the parties themselves (article 302 of the Criminal Procedure Law).

However, the situation changes completely in the trial phase, which is public, open, although with exceptions, related for example to minors or the privacy of the victim (article 681 of the Criminal Procedure Law). This publicity is an important element for the control of the correct development of justice. In this respect, we speak of a social control of the jurisdictional function. This public nature is set out in Article 120.1 of the Spanish Constitution, which states that "judicial proceedings shall be public, with the exceptions provided for in the procedural laws". This principle of publicity also applies to sentences, as indicated in Article 120.3 of the Spanish Constitution: "Sentences shall always state the reasons for them and shall be pronounced in open court".

Whether the person in question is a detainee, or is under investigation, accused or convicted, the fact is that different fundamental rights are in permanent conflict: on the one hand, freedom of information and, on the other hand, the rights to honour, privacy and self-image of these persons. For freedom of information to prevail, the requirements of truthfulness and the general interest of the news item must be met.

As regards the first requirement - truthfulness - the media must try to be precise in their language. The First Chamber of the Supreme Court has very recently handed down judgement number 286/2024, of 27 February, confirming the conviction of a media outlet for publishing that a person had been arrested, when this had not been the case, but only that he was under judicial investigation. As the consideration of being arrested is more serious than that of being merely investigated, it is understood that the information disseminated was not truthful, thus incurring in a violation of the right to honour.

Also noteworthy is judgement number 53/2017, of 27 January, of the First Chamber of the Supreme Court. It upholds the conviction of a media outlet for disseminating the photograph and labelling as a murderer, without respecting the presumption of innocence, a person who was being investigated for the death of a three-year-old girl, having been provisionally released without bail.

As far as the second requirement is concerned, it should not be difficult to comply with when a criminal act is involved, since criminal proceedings are newsworthy, as they have an implicit public interest, even if the person arrested, investigated, accused or convicted is not previously a public figure. It may be a private person who acquires what has come to be called "supervening notoriety", "supervening public relevance" or "supervening public projection" due to his or her position in the criminal proceedings, especially in the case of serious crimes.

This is determined in different rulings of the Supreme Court, such as number 547/2011, of 20 July, number 446/2017, of 13 July, number 25/2021, of 25 January, and number 1366/2023, of 4 October, which accept the publication of the name and surname, as well as the photograph, of the subject involved in the facts, even if it is a private person.

However, after years have passed, is it still possible to disseminate the identity and photograph of the person involved in the criminal case? The answer to this question is in Supreme Court ruling 484/2024 of 10 April. It explains that the requirement of general interest, of public relevance, is affected by the long period of time that has elapsed. After 36 years, the facts may still be of interest, but not the personal data of the person who was declared criminally responsible. The right to reintegration into society once the sentence has been served and the debt to society has been paid is emphasised.

It also distances itself from the judgment of the European Court of Human Rights of 28 June 2018 in which the refusal to anonymise data of two persons convicted of murder was considered correct. In doing so, the shorter time that has elapsed since the facts were committed in that case is highlighted. In the case referred to in the judgment of 28 June 2018, the reports took place in the year 2000, whereas the criminal act had occurred in 1991 and the criminal conviction was handed down in 1993, although the case remained in the news for a long time due to attempts by those responsible to have it judicially reopened. The victim had also been a well-known actor. Requests for the deletion of personal data began in 2007, coinciding with the imminent release of the convicted persons, but were rejected in Germany. The applications filed in 2010 before the European Court of Human Rights were finally dismissed by the judgment of 28 June 2018, on the grounds that the availability of the reports, accessible on websites, "still contributed to a debate of public interest which the passage of time had not made disappear".

A similar case to the one we have been discussing was resolved by the First Chamber of the Supreme Court in judgment number 545/2015, of 15 October. The digitisation in 2007 of the newspaper archive of a media outlet caused two men who had been arrested and convicted of drug trafficking in the 1980s to react. Once they had served their prison sentences and had given up drug use, in 2009 they filed an out-of-court complaint, and in 2011 a lawsuit, for the anonymisation of their data.

In its judgment, the Supreme Court praised the capacity of digital newspaper libraries to keep news and information available, as well as the important "watchdog" function of the media, but concluded that all this tends to become secondary over the years, while at the same time the right to privacy of individuals can be compromised, who in this case had their honour and privacy affected when their former drug addiction and related legal problems were made public, as the matter had lost public relevance and certainly did not present a historical interest that could justify the maintenance of identifying elements of the persons involved.

Finally, we draw attention to two very recent court rulings against the suppression of information. Firstly, we have ruling number 374/2024, of 4 March, of the Chamber for Contentious Administrative Proceedings of the Supreme Court. It confirms the refusal to delete personal data of the person who appeared in 1940 as the court clerk of the Military Press Court that condemned the poet Miguel Hernández to death. The request had been made by the son of this court clerk, who is now deceased. The Supreme Court indicates that the death of the person whose data is requested to be removed is not an impediment, in itself, but considers that it is not appropriate to grant the request in view of the weighing of other fundamental rights, such as the right to information, and in particular in light of the historical nature of the facts.

The second judicial decision to be highlighted is the ruling of 6 February 2024 of the Administrative Chamber of the Audiencia Nacional (National High Court). This decision rejects an appeal against the refusal to delete personal data of the person convicted of the death of Nagore Laffage in the Sanfermines in 2008. The National Court based its decision on the seriousness of the facts, which had a great impact on public opinion, as well as the short time that had elapsed since the prison sentence was served, which was 12 years for homicide. The court decision indicates that, given the circumstances, freedom of information and the public's interest in having the convicted person's personal data in the criminal proceedings must prevail.

Conclusions

In the light of the above, the conclusions we reach are as follows: