The Right To Be Forgotten in the Google Spain Case (case C-131/12): A Clear Victory for Data Protection or an Obstacle for the Internet?

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The Right To Be Forgotten in the Google Spain Case (case C-131/12): A Clear Victory for Data Protection or an Obstacle for the Internet? Ioannis Iglezakis Assistant Professor Faculty of Law, Aristotle University of Thessaloniki

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Reform of the data protection legal framework 2012 Proposal for a Regulation on the protection of individuals with regard to the processing of personal data and on the free movement of such data A central provision in the Draft Regulation is Article 17 introducing the ‘right to be forgotten’ in the digital environment, which draw its origins from the ‘right of oblivion’ – or le droit a l’oubli

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The ‘right to be forgotten’ in the digital environment

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Objective of the ‘right to be forgotten’ To enhance users’ rights on the Internet and remedy the lack of control over their personal data An attempt to deal with the issue of digital forgetting, in other words, with the privacy issues arising in a Web that never forgets

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Article 17 GDPR a right to erasure of data that requires the controller to delete personal data and preclude any further dissemination of this data, but also to oblige third parties, e.g. search engines, etc., to delete any links to, or copies or replication of that data

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Article 17 GDPR a) where data are no longer necessary in relation to the purposes for which they were collected or otherwise processed; b) where the data subject withdraws consent on which the processing is based or when the storage period consented to has expired and there is no other legal ground for the processing of the data; c) where the data subject objects to the processing of personal data; or d) where the data has been unlawfully processed.

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An ambivalent right? there are concerns expressed by US authors that this right will have chilling effects on free expression Viviane Reding, the former EU Justice Commissioner and currently Vice-President of the EU Commission, stressed out that this right builds on already existing rules.

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Ramifications of the Google Spain case The ruling of the CJEU in the Google Spain case, which recognized a right to have Google delete links to data that are irrelevant and outdated, will have significant repercussions, particularly to Internet companies, such as search engines. Google, shortly after the decision was issued, received certain takedown requests

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The dispute and the request for a preliminary ruling Mario Costeja Gonzalez submitted a request against the editor of a Spanish newspaper (La Vanguardia Ediciones SL) and against Google Spain and Google Inc. due to the reason that a search of his name in Google produced articles published in that newspaper (‘La Vanguardia’) sixteen years ago concerning a real-estate auction connected with attachment proceedings for the recovery of social security debts. Mr. Gonzalez sustained that the attachment proceedings concerning him had been fully resolved for a number of years and that reference to them was now entirely irrelevant.

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Preliminary ruling The National High Court referred nine questions to the CJEU for a preliminary ruling, which concern: a) the territorial application of Directive 95/46, b) the activity of search engines as providers of content in relation to the Directive and c) the scope of the right of erasure and the right to object in relation to the ‘right to be forgotten’.

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Processing of personal data The activity of a search engine consisting in finding information published or placed on the internet by third parties, indexing it automatically, storing it temporarily and, finally, making it available to internet users according to a particular order of preference must be classified as ‘processing of personal data’ within the meaning of Article 2(b) when that information contains personal data and, second, the operator of the search engine must be regarded as the ‘controller’ in respect of that processing, within the meaning of Article 2(d).

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Territorial application of Directive 95/46 Article 4(1)(a) of Directive 95/46 is to be interpreted as meaning that processing of personal data is carried out in the context of the activities of an establishment of the controller on the territory of a Member State, within the meaning of that provision, when the operator of a search engine sets up in a Member State a branch or subsidiary which is intended to promote and sell advertising space offered by that engine and which orientates its activity towards the inhabitants of that Member State.

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The role an Internet Intermediary the operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful.

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The right to be forgotten in the Directive 95/46 Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 are to be interpreted as meaning that, when appraising the conditions for the application of those provisions, it should inter alia be examined whether the data subject has a right that the information in question relating to him personally should, at this point in time, no longer be linked to his name by a list of results displayed following a search made on the basis of his name, without it being necessary in order to find such a right that the inclusion of the information in question in that list causes prejudice to the data subject.

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The right to be forgotten in the Directive 95/46 As the data subject may, in the light of his fundamental rights under Articles 7 and 8 of the Charter, request that the information in question no longer be made available to the general public on account of its inclusion in such a list of results, those rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in having access to that information upon a search relating to the data subject’s name. However, that would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of its inclusion in the list of results, access to the information in question.

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Conclusions The most important consequence of this case law is that an Internet search service provider needs to put itself in the position of the provider of the web page, in which personal information is initially published and make a privacy assessment of the facts underlying the dissemination of personal information on the Internet.

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Conclusions the provider of such services needs to assume responsibility for the processing of personal data, which it undertakes. In our view, the removal of any links to websites does not constitute censorship, if it is ordered by a court or an administrative authority and on the basis of legitimate grounds to protect privacy.

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Conclusions However, the court decision did not elaborate as much as necessary on that aspect and on the relation between the obligations of a search engine provider as a controller and the safe harbor principles of the e-commerce Directive (2000/31), establishing a neutral position of Internet intermediaries. The exceptions from the right to be forgotten should be clearly formulated.

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Conclusions In conclusion it would be right to say that this decision leaves open questions that should be addressed by the EU legislator in the data protection reform process.

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