With the end of the third year of operation of the European Law Blog approaching, it is once again time to take a brief look back at the most popular posts of the year. Based on our Google Analytics statistics and keeping in mind that there is a certain bias in favour of older posts which have had more time to become popular, we receive the following little tour d’horizon of EU law… Continue reading
By Brendan Van Alsenoy and Marieke Koekkoek
In May of this year, the Court of Justice of the European Union (CJEU) decided that individuals can ask Google to stop referring to certain information about them, as discussed previously on this blog. The CJEU’s recognition of this so-called “right to be forgotten” has kicked up quite a storm. Now that the dust is beginning to settle, it is time to direct our attention to questions of practical implementation. One set of questions is about territorial reach. How far should the right to be forgotten extend, geographically speaking? Should Google, upon finding that an individual’s request is justified, modify its search results globally? Or should it only modify search results shown within the EU?And if so, how useful or effective is this right to be forgotten then?
By Orla Lynskey
Judgment of the Court (Grand Chamber) in C-131/12 Google Spain v AEPD and Mario Costeja Gonzalez
When Advocate General Jääskinen delivered his Opinion in the Google Spain case in June of last year (as commented upon on this blog here), it seemed to many (myself included) that it was the last nail in the coffin of the controversial ‘right to be forgotten’ provided for in the EU’s Proposed Data Protection Regulation. The judgment of the Grand Chamber of the Court of Justice delivered this morning in this case would however indicate otherwise. Indeed, it seems to follow from the judgment, which comes down decisively in favour of data protection and privacy when balanced with freedom of expression, that a ‘right to be forgotten’ already exists in the EU data protection regime in all but name only. For an assessment of the implications of this case, skip right to the bottom of this lengthy post!
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’.