By Thomas R. Burke, Robert D. Balin, and Ambika K. Doran
In a significant and concerning decision, the European Court of Justice (“ECJ”) has endorsed the so-called “right to be forgotten” and ruled that, in some circumstances, search engines can be compelled to remove search result links to websites, news articles, court records and other documents that reveal truthful information about individuals—even when the information is not prejudicial and has been posted lawfully. Google Spain SL, Google Inc. v Agencia Española de Protección de Datos.
At issue in the underlying case was a Spanish national’s demand that Google remove links to two 1998 newspaper announcements that appeared in search results for his name, and which mentioned the forced auction of his real estate holdings. The claimant argued that since the related attachment proceedings had long since been resolved, this personal data was no longer relevant and Google should therefore be required to remove the links. The Spanish Data Protection Agency agreed, and when Google appealed that decision, the National High Court of Spain sought advice from the ECJ, the European Union’s highest court.
The case raised important questions about the obligations of online intermediaries and the EU’s controversial “right to be forgotten,” a right that is the subject of proposed legislation.
The ECJ decision removes any doubt that search engines are subject to the EU’s Data Protection Directive 95/46/EC, which requires Member States to ensure “personal data” is “processed fairly and lawfully,” and obligates the “controller” to ensure compliance. The Court found Google “processes personal data” and is a “controller” with respect to that data, and thus must comply with the Directive. Google did not contest the data at issue was “personal,” nor could it, given the Directive’s extremely broad definition of the term as including “any information relating to an identified or identifiable natural person.”
The Court went to great lengths to distinguish Google, as a search engine, from the original source of content, noting that the “economic interest” of a search engine cannot justify the “potential seriousness” of the intrusion search results can create. The Court found that, unlike websites (such as newspapers) that initially publish information, Google searches are “ubiquitous” and enable access to a “structured overview” of detailed private information about a person not otherwise available. The Court concluded: “Inasmuch as the activity of a search engine is … liable to affect significantly, and additionally compared with that of the publishers of websites, the fundamental rights to privacy and to the protection of personal data, the operator of the search engine … must ensure … the activity meets the requirements of Directive 95/46.”
The Court also made clear that the Directive includes the so-called “right to be forgotten,” noting the law prohibits continued dissemination of accurate personal information that is “irrelevant, or no longer relevant, or excessive in relation to th[e] purposes [for which it was collected] and in light of the time that has elapsed.” At least one American state, California, has passed a similar law, which starting in 2015 will require websites (although not intermediaries like search engines) to remove material posted by a minor upon request.
The ECJ decision will require search engines to review what may be a flood of de-linking demands from European nationals unhappy with information revealed through searches for their names, and to make a decision, at the outset, whether the Directive protects the information. Significantly, the Court found that a search subject’s data privacy rights “override, as a general rule, the interest of internet users,” with the caveat that the “balance may … depend, in specific cases, on the nature of the information in question and its sensitivity to the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life.”
In practice, search engines may face difficult choices among a range of options, from automatically removing links upon request, a less costly but less accurate prospect, to individually reviewing each of thousands upon thousands of takedown requests, a more accurate but more costly approach. In close cases, search engines may err on the side of caution. The ECJ decision thus poses a serious risk of chilling online publication of truthful third-party content in Europe.