The recent ruling by the Constitutional Court (TC) ordering the removal of three news articles related to the so-called Orellana case has reignited the debate over the limits of the right to be forgotten in Peru. Although the aim of protecting the honor and reputation of a person who was subsequently exonerated is constitutionally legitimate, the decision raises a question of greater significance: whether the permanent removal of journalistic archives constitutes a measure compatible with freedom of information, historical memory, and national and international standards for the protection of fundamental rights.
By Yngrid Armas
The Conflict Between Two Fundamental Rights
The case pits two constitutional rights of equal standing against one another.
On the one hand, Article 2, paragraph 7, of the Constitution protects honor, good reputation, and privacy—rights reinforced by Law No. 29733, the Personal Data Protection Act.
On the other hand, Article 2, paragraph 4, of the Constitution guarantees the freedoms of information, expression, and the press—essential pillars of the constitutional state and of democratic oversight over matters of public interest.
The real legal issue does not lie in recognizing the right to be forgotten, but in determining which mechanism is constitutionally appropriate to give it effect.
The Principle of Proportionality as the Cornerstone of the Analysis
The Constitutional Court’s ruling opted for the most drastic measure: ordering the complete removal of the digital publications.
However, the principle of proportionality required evaluating alternatives less restrictive of freedom of information, such as: The permanent removal of content constitutes the most burdensome measure for the right to information and for the preservation of the historical record.
- updating the news stories to include information about the plaintiff’s exoneration;
- ordering de-indexing by search engines;
- resorting, exceptionally, to anonymization mechanisms.
The Personal Data Protection Act and Journalistic Activity
Paradoxically, Law No. 29733 itself contains safeguards for journalistic practice.
Among these are:
- the exclusion of data processing carried out in the exercise of the freedoms of information and expression;
- exceptions to the consent requirement when there is a public interest;
- limits on the right to erasure when historical or informational purposes are involved.
- Therefore, the ruling appears to deviate from the balance established by Peruvian law between data protection and freedom of the press.
The international standard
The decision also diverges from European case law.
The European Court of Human Rights and the Court of Justice of the European Union clearly distinguish between: search engines, where the right to be forgotten can be enforced through de-indexing; and digital newspaper archives, whose historical value warrants enhanced protection.
Cases such as Google Spain, Times Newspapers Ltd. v. United Kingdom, and Hurbain v. Belgium show that the general rule is not to remove journalistic information, but rather to adopt less harmful measures to simultaneously preserve both reputation and historical memory.
Consequences of the Constitutional Precedent
The ruling could have significant institutional effects: This is not merely a matter concerning a specific individual, but rather the model of constitutional protection applicable to the entire Peruvian digital press.
- an increase in legal actions seeking the removal of old news stories;
- the weakening of investigative journalism;
- incentives for self-censorship;
- the fragmentation of digital historical archives;
- an impact on citizens’ right to access information of public interest.
Conclusion
The protection of honor, privacy, and reputation constitutes a constitutional obligation of the State. However, such protection must be exercised in accordance with the principle of proportionality and in a manner that imposes the least possible restriction on freedom of information.
The complete removal of accurate journalistic publications appears to be an excessive measure compared to less harmful alternatives, such as updating news stories, de-indexing, or anonymization. Consequently, the precedent set by the Constitutional Court not only redefines the scope of the right to be forgotten in Peru but also poses serious challenges to press freedom, the preservation of historical memory, and the legal certainty of investigative journalism.
This approach shifts the debate toward a reflection on the balance between fundamental rights, avoiding the portrayal of the conflict as a simple confrontation between privacy and the press.
#RightToBeForgotten #ConstitutionalCourt #FreedomOfThePress #FreedomOfExpression #FundamentalRights #Constitution #ConstitutionalLaw #DataProtection #Journalism # InvestigativeJournalism #RuleOfLaw #CaseLaw #DigitalLaw #Proportionality #LegalCertainty #HistoricalMemory #LegalAnalysis #Peru
You can read a more extensive interview on La Plataforma CB: