In 1999, a trial court of the First Judicial Circuit of San José sentenced a man to four years in prison for dishonest abuses to the detriment of his niece, a minor, committed in 1995. Two months later, the Appeals Court ratified the sentence.
The individual left the country to evade the serving the sentence despite the fact that the authorities issued 13 arrest warrants between 2000 and 2005.
In February 2006, this individual was captured in Costa Rica. However, he was released because a year earlier, in April 2005, the case had prescribed.
That is the news that the newspaper Al Día published in February 2006, when the newspaper still existed and that, until several months ago, it could still be read online.
Now, no one can access that online information because, in August 2019, the Agencia de Protección de Datos de los Habitantes (Prodhab) – Agency for the Protection of Inhabitants Data – ordered the suppression of that news from that Al Dia’s website*.
Prodhab, an agency attached to the Ministerio de Justicia y Paz (Ministry of Justice and Peace) – the ministry that runs the country’s prison system – ordered the deletion of two other news items published in the online edition of La Nación, related to individuals with pending criminal cases.
Likewise, Prodhab has issued orders to suppress the news in digital media of the Diario Extra, among others.
To order the suppression of news from the media, this government agency obtains its power from the general rule of the Ley de Protección de la Persona frente al Tratamiento de sus Datos Personales (número 8968) – Law on the Protection of the Person against the Processing of Personal Data – on the books since September 2011.
Prodhab uses the criterion that people have the “right to be forgotten” of negative facts of their lives, even if their judicial sentences were never fulfilled, and that all records are to be deleted in databases.
The measure has been applied without taking into account that the media constitute the first historical record of nations.
The government agency categorizes digital archives of these media as “databases” and applies the general rule established in the articles of Law 8968 that the Prodhab applies rigorously, that reads: “In no case, personal data that may affect its owner, in any way, will be kept, after ten years have elapsed from the date of occurrence of the recorded events, unless otherwise provided by special regulations”.
The law establishes that personal data may be collected, stored or used when they are “current, truthful, accurate and adequate for the purpose for which they were collected” and establishes that the person in charge of the “database will delete the data that have ceased to be relevant or necessary because of the purpose for which they were received and registered.”
In July 2018, Prodhab ordered the elimination of an article in which La Nación reported, in March 2006, about the extradition of a Costa Rican captured in Miami by Interpol.
In September 2018, the agency also ordered the removal of a La Nación web article, from February 2007, about a convicted person for the crimes of abortion without consent and firearm aggression, who was captured in the United States and returned to Costa Rica.
Freedom of expression
In Costa Rica, Article 29 of the Constitution guarantees freedom of expression, while Article 13 of the American Convention on Human Rights states that “the right to expression cannot be restricted by direct or indirect means, such as abuse of official or private controls of paper for newspapers, radio frequencies, or equipment and devices used in the dissemination of information or by any other means aimed at preventing the communication and circulation of ideas and opinions.
In an interview with La Nación, the current director of Prodhab said that, for the purposes of the Agency, the reports of an online media are a “database” and that, when analyzing the requests of individuals, they do not evaluate on the merits, but only if they comply with the requirements, considering that they are information older than 10 years.
The law literally defines a database in this way: “Any file, record or other structured sets of personal data, which are subject to treatment or processing, automated or manual, whatever the method of its preparation, organization or access. ”
“We cannot go beyond what the law tells us, that if it tells us that the maximum term is 10 years and a complaint arrives before us, which complies with the precepts, we must order the suppression,” said Mora.
The official added that the agency is not responsible for judging whether a person was guilty or not, or if they committed a crime, because “the court has already issued a resolution.”
“We do not question the decision of the court in the case, or if the person is guilty or not. The Agency is not responsible for judging or questioning the credibility of a person,” argued Prodhab director.
According to the argument put forward by Mora, Prodhab considers itself mainly the “right of informational self-determination”, which for its purposes is the right of a person to decide “where and how of their information”.
Regarding the criteria to order that an article be removed from a newspaper, the official indicated that each analysis depends on the specific case, so that for the same facts in two different complaints, there could be totally different resolutions.
“The rule is very general and, as the case may be, the Agency has to make the proper interpretation,” said Mora.
Mora emphasized that the actions of the Agency do not order the destroying of the news items, rather their access to the public.
Deleting print editions?
Asked about the possibility that, upon complaint, an individual may request that printed editions of a media outlet be eliminated, the director of Prodhab responded that “the law does not establish a limit”, but that the decisions they have taken and the cases that have been analyzed go “to an issue of practicality.”
“I could not order that all the editions of a newspaper of 20 years ago be eliminated, it seems that that would not make much sense, it is even something that is already out of control of the same media,” Mora argued.
She argued that the law refers to databases, and therefore they direct their resolutions to the “person in charge of those databases, as it may be physical or digital.”
“What is intended when ordering the removal of information that is on the web, it is the public’s access to that information,” said the director of the Agency.
*Al Dia was a publication of the Grupo Nacion, both in print and online. Today the Al Dia website redirects to La Nacion