What obligations does EU data protection law impose on search engines such as Google vis-à-vis individuals who wish to suppress information about them which is lawfully available online? None according to the Advocate General as Google does not fall within the material scope of data protection law in the context of its role as a provider of free search engine services. In any event, according to the Advocate General, individuals cannot derive a ‘Right to be Forgotten’ from the current data protection rules. These were only some of the issues on which the Court was asked to adjudicate in a preliminary reference from the Spanish Audencia Nacional. Given that only a handful of cases concerning the interpretation of EU data protection rules have appeared on the Court’s docket to date, the Opinion of Advocate General Jääskinen – delivered on 25 June 2013 – was eagerly anticipated.
The facts of this case are as follows. In 1998, a newspaper published an article containing details of insolvency proceedings relating to social security debts. The relevant article was later made available online. An individual implicated in these insolvency proceedings asked the newspaper to erase this piece arguing that the proceedings had been concluded and were therefore no longer of relevance. The publisher refused to erase the data on the basis that the Ministry of Labour and Social Affairs had ordered its publication. The individual then redirected his request for erasure to Google Spain asking it to no longer show links to the newspaper in its search results when his name was entered as a search term in the search engine. The individual also addressed a complaint to the Spanish Data Protection Authority (DPA). The DPA rejected the complaint against the newspaper on the grounds that the publication of such data in the press was legally justified. However, the DPA upheld the complaint against Google Spain and Google Inc, requesting that the contested search results be removed from Google’s index of search results. Google sought the annulment of this decision before the Audencia Nacional which stayed the proceedings in order to refer a number of questions to the Court of Justice. The referred questions deal with three primary issues: the territorial application of the EU Data Protection Directive (Directive 95/46 EC), the notion of ‘data controller’ in the context of search engines and the controversial ‘right to be forgotten’.