Thursday 23 October 2014

Behold – how EU court put a limited curb on power of Google

TJ McIntyre

Published 14/05/2014 | 02:30

The Court of Justice of the European Union has issued a ruling on Google search results
The Court of Justice of the European Union has issued a ruling on Google search results

THE European Court of Justice has ruled on a case brought by Google against the Spanish data protection authority – and for the second time in as many months it gave a landmark judgment on privacy, widened the rights which individuals enjoy against search engines and recognising a limited "right to be forgotten".

Earlier, the Spanish data protection authority held that a newspaper was justified in keeping notices in its online archive but complainant Costeja Gonzalez was entitled to have the links to them removed from the list of results following a search on his name.

Google challenged this decision in the Spanish High Court, which referred a number of questions to the European Court of Justice for guidance. An initial question was whether the Spanish authorities could regulate Google searches at all. Unsurprisingly, the European Court held that it could – on the basis that the advertising and search functions were "inextricably linked" and that any other result would compromise the effectiveness of European law and the protection of fundamental rights.

This is a significant ruling in itself and undermines Google's attempts to use its corporate structure to keep the search function within the US jurisdiction and beyond the reach of stricter EU data protection laws.

More fundamentally, the court had to consider whether an individual could use data-protection law to request that a search engine not display certain results when a search is carried out against his name, even where the relevant web pages are themselves published lawfully and contain only true information.

In an unexpected development, the court held that data-protection law gave individuals that right – in effect, recognising a 'right to be forgotten' by search engines. The reasoning of the court reflects a particular concern about search engines which it describes as giving "a structured overview of information relating to the individual" covering "a vast number of aspects of his private life" so as to establish a "detailed profile of him".

When can this "right to be forgotten" be relied on? The judgment provides only limited guidance. It is clear that it does not require any particular prejudice – an individual can request that a search result be removed simply on the basis that it is "no longer relevant" given the length of time since the information was published or that it is "excessive" or "irrelevant".

The right is not absolute. The right of the individual to privacy and data protection will generally over-ride "the economic interest of the operator of the search engine" and "the interest of the general public in having access to information upon a search relating to the individual's name".

Against that, the court recognises that there may be particular reasons "such as the role played by the individual in public life" which mean that an interference with privacy rights is justified by the wider public interest – unhelpfully, however, the court does not elaborate on what these reasons might be.

The reasoning is specific to search engines and will not necessarily apply elsewhere. It certainly does not create a fully fledged "right to be forgotten" online. The case is still a major loss for search engines generally – and Google in particular.

The judgment creates a framework within which the search engine will be the first port of call for individuals who wish to have material hidden. It will require search engines to engage in a difficult balancing exercise in deciding whether or not particular search results should be blocked.

From a freedom of expression perspective, the case is also a significant worry to many who see it as failing to give adequate weight to the role of search engines in making speech accessible online. Particul-arly in a case such as this – where the original newspaper webpage is still online – one might question whether it is appropriate that a data protect-ion authority or court should be eng-aged in hiding material which a publ- isher is lawfully entitled to publish.

TJ McIntyre is a lecturer in the UCD Sutherland School of Law and chairman of Digital Rights Ireland.

Irish Independent

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