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A Right to be forgotten

May 16, 2014

The European Court of Justice has ruled that an individuals “right to be forgotten” was so strong that Google and other internet search engines can be asked to remove search engine entries against individuals which are “inadequate, irrelevant or no longer relevant” data from its results.

The court adjudged that a European Union Directive of the 24th October 1995 already exists to protect the freedoms, rights and privacy of a person in relation to personal information being processed about them but at the same time allowing any free movement of data a gives a right to be forgotten

In 2010 a Spanish man named Mario Costeja Gonzalez made a complaint to the Spanish Data Protection Agency (AEPD) about La Vanguardia Ediciones who publish a daily newspaper with a vast distribution in Catalonia and throughout Spain. When he made a “Google Search” of his name there were links to the newspaper published by La Vanguardia Ediciones which had reported on a property auction that had happened following proceedings against him for the recovery of social security monies that he had owed.

When Mr Gonzalez complained to the AEPD he asked for the removal of the link pages to the newspaper which had been published by La Vanguardia Ediciones or for them to be hidden so that the date did not appear when using the search engine or in the newspaper link pages. He argued that the proceedings against him and the reference made to them had been settled for many years and were no longer of any relevance.

The complaint made about La Vanguardia Ediciones to the AEPD was dismissed by them. They believed that the information contained in the newspaper articles had been legitimately used by the publisher. However, with regard to Google Spain and Google inc, AEPD asked them to take out reference to the data from their records and to prevent access in the future.

Google Spain and Google inc brought actions against the High Court in Spain asking for an annulment of the AEPD’s decision which the High Court in Spain referred to European Court of Justice.

The Court of Justice found that the search engine operator “collects data” and “retrieves”, “records” and “organises” the data and then “stores” on servers. All are “processing” operations.

The Court held that the search engine operator is the “controller” of the processing operation and as such must comply with the directive in order that there is protection for those affected by the data and particularly with regard to privacy.

Looking at Google, the Court stated that Google Spain is a part of Google inc within Spain and within the directive classed as “establishment” in a member state and thus processing is done “in the context of the activities” if that “establishment” within that member state intends to promote advertising by the search engine in order to make profit.

The Court ruled that the operator had an obligation in some matters to take off from their search engine information relating to a person published by third parties and revealed after typing in a specific name.

The Court gave an overview of the use of search engines in modern society saying that information gleaned about a person’s private life would have been near impossible without the internet and thus a person’s rights are affected by the role of the search engines and the internet by the involvement in their life which the Court said could not be acceptable in comparison with the interest of the operator with the profit to be made by it in processing the information.

The Court held that there should be a fair balance between the operators’ interest and the rights of the person who is the subject of the data i.e right to privacy and the right to have protection of that person’s personal information.

The Court answered the question about the links to the pages being “forgotten” after a time and ruled in this case because of the inadequacy and irrelevance of the information and the elapse of time, this was not compatible with the directive and therefore they should be removed.

Already many take down requests have been made and Google has stated it will comply with the ruling. There is no right of appeal for Google.

Ironically for Mario Costeja Gonzalez because of the ruling there is no prospect of him being forgotten.

We will have to wait how it works in practice.

It will help those with embarrassing information or pictures on the internet which they cannot have removed, maybe because the website is abroad so litigation is pointless. Or it would cover a case were a conviction is spent but still is available for all to see on the internet by way of a press report on an old website.

The press are concerned as to the restraints it will put in place on the free flow of information but maybe those people whose lives have been ruined by the internet search engines will now have a remedy and some hope of being forgotten.