Tuesday, 2 July 2013

No forgetting - Opinion of AG Jääskinen in case C-131/12 Google Spain

While the internet makes possible the fast distribution of information (which, for instance, allows me to trace my co-authors' steps in Australia through their posts on this blog), it also makes people vulnerable to infringements of their privacy in case too much information is or remains available online. Since the word 'google' became a verb, cases in which a request is made to have certain data removed from websites have arisen with increasing frequency. A recent example is that of Google Spain v the Spanish Agency for Data Protection (AEPD) and Mario Costeja González, in which a number of questions have been referred to the Court of Justice of the EU for a preliminary ruling. Last week, Advocate General Jääskinen handed down his Opinion in this case.

The case concerned references to a Spanish newspaper article about a person having been involved in a real-estate auction because of his social security debts. Arguing that these proceedings had ended years earlier and were no longer of relevance, this person requested Google to make sure that no references to the newspaper article would appear when his name and surnames were entered in the Google search engine. The Director of the Spanish Data Protection Agency upheld his claim against Google Spain and Google Inc., requiring the search engine service providers to take the necessary measures to withdraw the data from their index and prevent further access to these data. Both Google and Google Inc. appealed against this decision. The Spanish National High Court hearing their case referred a number of questions to the CJEU concerning the application of EU data protection law.

AG Jääskinen considers that search engine service providers are not responsible, on the basis of the Data Protection Directive, for personal data appearing on web pages they process. An important reason for this is that the Directive should not be considered to establish a general 'right to be forgotten'. In Jääskinen's opinion, such a right cannot be invoked against search engine providers on the basis of the Data Protection Directive, even when the Directive is interpreted in accordance with the Charter of Fundamental Rights of the EU. In other words, the AG seeks to discourage the CJEU from establishing a 'horizontal effect' of the right to be forgotten, that is: its application to the relationship between the search engine service provider and individuals whose data show up in searches. His opinion seems to be based, in particular, on the fact that the publisher's right to freedom of expression deserves protection as well, and that the task of striking a balance between privacy protection and freedom of expression should not be assigned to search engine service providers on a case-by-case basis. Rather, Member States should provide effective remedies against the infringement of privacy by web publishers.

See the press release for a brief summary of the AG's opinion.

1 comment:

  1. This could be quite an important judgment for the EU. Interestingly, we have been discussing these issues - the scope of the responsibility for the content published online of ISPs and parties in charge of websites - yesterday at the IACL 2013 conference in Sydney, in the session on digital marketplace.