EU’s Top Court Establishes “Right to be Forgotten”

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This week the European Court of Justice (ECJ) handed down what is sure to become a landmark decision in the area of human privacy versus the freedom of speech. In Google v Gonzalez, the ECJ held that Sr. Mario Costeja Gonzalez’s right to privacy was sufficient cause to compel Google and Google Spain to unlist from their search results any mention of his 1998 housing foreclosure. Prior to the case, anyone searching for Gonzalez’s name online would have found two links to a newspaper articles in Spain’s La Vanguardia newspaper replete with the details of Gonzalez’s state-mandated property auction to pay back social security benefits. The notices in the newspaper were not published due to any fame or notoriety on the part of Gonzalez, they were part of a court ordered announcement of the auction, as required by Spanish law.

La Vanguardia is not being required by the court to remove the articles in question; they are to remain as part of the public record, but by empowering Gonzalez to demand their removal from popular search engine listings, such as Google, the court claims that it is preserving Gonzalez’s “derecho al olvido” (the “right to be forgotten”). In a twist of irony, the court’s decision virtually guarantees that Gonzalez will never be forgotten. Gonzalez doesn’t mind this sort of publicity, however, telling the UK’s Guardian newspaper “”Like anyone would be when you tell them they’re right, I’m happy”. Despite the bitterly contested case, which Google called “disappointing”, Gonzalez chose not to disparage Google, stating that “I’ve been saying to people, if Google was good before, now it’s perfect.”

Under the EU law principle of “Direct Effect” established in the 1963 Van Gent en Loos case, the protections of EU treaties and directives are directly applicable to all EU citizens, meaning that this case takes effect across all European Union nations, much as a Supreme Court case takes effect all over the United States. In this case, it is Directive 95/46/EC on the Protection of Personal Data, which states in its preamble that “data-processing systems are designed to serve man; whereas they must, whatever the nationality or residence of natural persons, respect their fundamental rights and freedoms, notably the right to privacy”.

Google claimed that the result was “very surprising”, given that as recently as June of last year the court’s Advocate General Niilo Jääskinen issued a formal opinion stating that there was no universal “right to be forgotten”. However, Gonzalez builds on the 2001 Lindqvist criminal case which found that “the operation of loading personal data on an internet page must be considered to be such ‘processing’ within the meaning of Article 2(b) of Directive 95/46”

The Gonzalez decision is stunning to most Americans, who cherish their freedom of speech and decry most forms of what they deem ‘censorship’. Some liken this decision to something more expected from a despotic enemy of democracy, not the like-minded liberal courts of Western Europe. But the EU has long placed a premium on the value of privacy as it related to EU citizens, having enshrined the right to privacy in Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, drafted in 2000 and brought into force through the Lisbon Treaty in 2009.

The court did make overtures to the integrity and need for the press in declining to extend its ruling to compel La Vanguardia to remove the unflattering stories, which it declared to be online for “journalistic purposes” (as well as required by Spanish publication requirements) as opposed to Google’s mere processing of data.

Redaction of personal information from search engine results will be handled on a case-by-case basis, with individuals having to reach out to the separate search engines to request that links to content concerning them be taken down. If a search engine does not follow the request, the opinion calls for national courts or data protection agencies to step in and enforce compliance against the noncompliant search engine. Search engines can prevail against requests for removal upon a showing of “reasons substantiating a preponderant interest of the public in having, in the context of such a search, access to that information”, such as matters of celebrity or other public figures.

It has yet to be seen whether or not Google will create two different user experiences when implementing this ruling; it could split traffic based on IP geo locations and provide a European version where EU citizens with the time and means to purge their digital pasts have spotless Google search results, and a version for the rest of the world where the blemishes of bad life and business decisions can be viewed; or it might save itself the headache and remove the content worldwide. The court’s opinion mentions the differences between www.google.com and www.google.es, but does not expressly state whether the judgment is expected to be enforceable against both websites. Additionally, the judgment has no immediate impact on social media services such as Twitter and Facebook. The opinion was written narrowly, limiting its focus to search engines instead of the entire panoply of online social media forums.

Internet privacy has been a major conversation piece for the past year, since Edward Snowden jump-started the discussion over NSA’s monitoring practices in May. California has a pending “Internet Eraser” law that comes into effect in 2015, allowing minors a one-time wipe of all data posted as a minor when they turn 18 (unless, as Slate notes “that content was originally uploaded by a third party or is subpoenaed”); although the bill has several loopholes and issues in need of clarification.

Internet censorship is on the rise. Freedom House’s fourth edition of its Freedom on the Net [pdf] survey was released last year, which found that “24 nations have added new laws or regulations that restrict online speech since May 2012.” It will be interesting to see whether the EU will be penalized for censorship activities in the next edition, given that the ability to restrict search results is limited solely to the EU citizens mentioned in the search results.

About Rob Sharp

Rob Sharp is an international law junkie with a particular interest in comparative law, sovereignty and state responses to terrorism. On the lighter side of things, Rob enjoys travel, college football, and reading. Rob has a B.A. in Political Science from the University of California at Berkeley and a JD from Notre Dame Law School. Rob returned to his birthplace of London in his second year to participate in NDLS’ Concannon Programme of International Law.
Posted in: International Law, Internet, Law, Privacy, Technology