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The Right to be Forgotten

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Following the judgment in the case of Google Spain SL, Google Inc. v Agencia Espa~A+/-ola de Protecci~A^3n de Datos, Mario Costeja Gonz~A!lez, internet search engines such as Google, Yahoo! and Bing are now responsible for personal information which appears on other parties' web pages. As such, these search engines must give individuals the right to request the removal of information that appears in search results.

The case arose after Mario Costeja Gonz~A!lez complained to a Spanish newspaper that had, in 1998, published an announcement about the forced sale of his property. A version of the edition of the newspaper was later made available on the internet. Gonz~A!lez was named in the announcement and complained in November 2009 that when his name was entered into a Google search engine, it led to the announcements. He asked that the data relating to him be removed, arguing that the forced sale had been concluded years before and was no longer relevant. The newspaper replied that erasing his data was not appropriate since the publication had been on the order of the Spanish Ministry of Labour and Social Affairs.

Gonz~A!lez contacted Google Spain in February 2010 asking that the links to the announcements be removed. Google Spain forwarded the request to Google Inc., whose registered office is in California, taking the view that the latter was the responsible body. Gonz~A!lez lodged a complaint with the Spanish Data Protection Agency which called for Google Spain and Google Inc. to remove the links complained of and make it impossible to access the data. Google Spain and Google Inc. appealed against the decision.

The National High Court of Spain presented the case to the Court of Justice of the European Union, to discuss EU Directive 95/46/EC (Data Protection Directive). As the Court was asked a number of novel questions, an opinion was sought from the Advocate General. The Court ruled as follows:

    • Internet search engine operators were responsible for the processing they carried out of personal data which appears on web pages published by third parties - thereby upholding the right to erase this information.
    • Internet search engine operators were data controllers within the scope of the Directive.
    • The obligations and duties of the operator of a search engine require a balancing of the opposing rights and interests of the individual (the data subject) and the data controller (the search engine operator). The Directive allows the individual to object to the processing of data relating to him and allows him to request erasure of the data. The nature of the information, the interest of the public, the effect on the private life of the individual and their status in society all play a part in determining whether the information should be left online.
    • If the request is not granted, the individual may direct the request to a supervisory body or a court to order the search engine operator to erase the data.

The Court was asked to consider whether there was indeed a 'right' to be forgotten. The Court did not uphold this and instead found that data would only be removed from search engine results if the impact it has on the individual is larger than the public's right to have the information. Processing information that is not merely inaccurate but is inadequate, irrelevant or excessive may be incompatible with the Directive and as such, the information and links in the list of results must be erased.

The Data Protection Directive is due to be replaced in late 2014 by the General Data Protection Regulation. This will harmonise the data protection regulations throughout the EU, thereby making it easier for non-European companies to comply with these regulations.

The commentary following the Court's judgment has been divided. Arguments have been made that this ruling is promoting the censorship of the internet. The Index on Censorship, which promotes the freedom of expression, has stated that selectively deleting online data in an aim to remove bad parts of an individual's history was 'akin to marching into a library and forcing it to pulp books'.

Notwithstanding the concerns that the judgment has raised, many have embraced the Court's ruling which gives individuals stronger control over their online identities.

What Saunders Law can do for you

Services for individuals:

Saunders Law can help you with your application to have information removed from the internet, be it on individual web-pages or from search engine results. We can help you remove the following information from the internet:

    • Offensive images
    • National identification numbers/ bank account numbers/ credit card numbers
    • Images of signatures
    • Any information that appears to be inadequate, irrelevant or no longer relevant or excessive in the light of the time that had elapsed

This list is not exhaustive and removals are decided on a case by case basis; let Saunders Law give you the best chance possible to get it right, first time.

Services for businesses:

Saunders Law can ensure that any business that, through its activities, takes on the role of a data controller complies with the data protection laws of the EU, including the General Data Protection Regulation.

 

Shamina Chowdhury is a Solicitor in the Civil and Commercial Litigation Departments

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