In Google Spain ‘right to be forgotten’ case, EU court looks critically at free expression defense

by Thompson Coburn LLP
Contact

Google Spain - free expression defenseThe European Court of Justice’s decision in the Google Spain “right to be forgotten” case isn’t just a ruling about a crazy European regulation. Commentators who brush it off on that basis, or as an anti-free-speech aberration, are missing its significance and the lesson it sends to the Internet users and regulators worldwide.

It wasn’t surprising that the European Union’s highest court enforced the European Union’s right to be forgotten. What was surprising, however, was that that controversial right was enforced against Google — contrary to the recommendation of the court’s advocate general, and contrary to the expectations of most informed observers.

Burdening Google’s web search is unpopular. We all use Google’s web search. It is the most frequent entryway to Internet, and an awesome tool for online exploration. Policymakers know that their constituencies generally don’t want them interfering with Google search. Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit explained a few years ago that in order to get support for his position in one landmark Internet case, he had to convince his fellow judges that the decision would not hurt Google. With a wink, he noted the first letter of every paragraph in his opinion spelled out the message, “THIS WILL NOT HURT GOOGLE.”

But in the Google Spain case, the European Court of Justice did burden Google. It took the unprecedented step of commanding that Google conceal rather than reveal information that was publicly posted on the Internet. Why?

‘Data processor’ or ‘data controller’?
The case involved a legal debt-collection notice, concerning the plaintiff, Costeja Gonzalez, which was originally published in a Spanish newspaper in 1998, and still available in 2010 on the Internet when Mr. Gonzalez sought its removal as outdated and moot (because the debt collection had previously been resolved). In an administrative action, the Spanish data protection agency ruled against Google, which appealed to Spain’s National High Court. That court certified key questions to the European Court of Justice (ECJ).

The ECJ clearly took the case seriously. An advocate general of the court prepared a lengthy analysis and recommendation that provided background on Internet realities and the policy implications of making Google liable for removing links to old and allegedly out-of-date content. The court en banc (“grand chamber”) ruled on the case on May 13, 2014.

Initially the court found that under the EU’s 1995 Data Protection Directive, Google was a “data processor” (something that “goes without saying” in the advocate general’s view), and a data “controller” (a more controversial determination), because Google determined the purposes and means of its web searches. So classified, Google was subject to the Data Protection Directive.

That Directive included rights of individuals to seek erasure of incomplete or inaccurate data, or data otherwise not in compliance with the Directive. While the advocate general viewed these rights under the 1995 Directive as falling short of the “right to be forgotten” proposed for the proposed new EU Data Protection Regulation, the Court viewed them as effectively creating a right to be forgotten. And it applied the right not just to incomplete and inaccurate data, but also to outdated data, no longer needed for its original purpose. In effect, it applied a concept of data minimization — that data should not be further used once the original purposes for its collection and dissemination were satisfied. The legal notice about Mr. Gonzalez’s 1998 debt was no longer relevant.

With Google classified as a data controller, the conflict was clear. Mr. Gonzalez sought removal of the notice from his long-ago debt from Google search results, on grounds of his privacy and his right to be forgotten. Google sought the right to include that information, particularly because it was still legally posted on the Internet site of the newspaper that first published it. Here, the advocate general had urged that Google fulfilled useful functions in making information available, and it should prevail.

The Court, however, balanced the two interests differently. It focused on the impact on Mr. Gonzalez and similarly situated individuals, and found that ready Internet accessibility of private information seriously interfered with their privacy interests. Indeed, while the advocate general had focused on the benefits of Internet search, the Court focused on the detriments of retrieval of outdated information. It found that the centrality of the Internet heightens “the effect of the interference” with privacy rights, because Google search results make the private information “ubiquitous.” Indeed, the Court noted, availability of information on search results pages likely “constitute a more significant interference with the data subject’s fundamental right to privacy than the publication on the [original] web page.”
 
Interestingly, the Spanish data protection agency found no need for the original publisher of the legal notice about Mr. Gonzalez to take down the notice, because of a privilege in Spanish law. In its absence, Google, a mere intermediary between that publisher and the public, became the focus of the case in the ECJ.  The issue became solely Google’s indexing of legally posted information.

Digging deeper
The Court concluded that in the case of information subject to the right to be forgotten (inaccurate and incomplete data, and data that are “irrelevant or excessive in relation to the purposes of the processing”), a data subject’s rights outweigh both the economic interest of the search engine operator, and the interest of the general public in searching and finding that information. It noted, however, that it assumed that the information related to a private person, and it acknowledged that the balance could be struck differently if the data subject had a role in public life.

The ECJ is a court of last resort. It has pronounced the law of the European Union and it has embraced an robust, though not unlimited, right to be forgotten. And it made that right enforceable even against Google, a party that had no responsibility for the original publication and that provides an inestimable service to Internet users worldwide. Again, why?

While most observers had expected a narrow ruling about who qualifies as a “data controller,” the Court went further, and its decision focused on the balance between privacy and free expression rights. When the Court examined free-expression justifications for the continued ready availability of the old postings about Mr. Gonzalez, it found no persuasive answers. 

Inertia is the greatest force in the world, and most publishers, in view of the ease of Internet publishing and the low cost of Internet storage, tend to publish practically everything on the Internet, and leave it there forever. The 12-year-old debt collection notice about Mr. Gonzalez isn’t an aberration; a lot of what was posted long ago on the Internet, and still accessible, is often outdated, unneeded, and irrelevant. It can be hard to justify within a system — like Europe’s — that balances privacy and expression interests.

Publishers on notice
By ruling on Google searches, a ubiquitous and central feature of the Internet,  the Court sent a message to everyone about its concern about the privacy-free expression balance. To oversimplify, because the ECJ decision speaks to Google, the king of the Internet, it also speaks to all Internet publishers, and tells them to come armed with good justifications, not just habit and technological capabilities, for what they publish and make available.
 
Future right-to-be-forgotten cases are likely to involve publishers, not search engines. At least in Europe, publishers who seek to justify their current methods about archival material need to formulate better freedom of expression rationales if they are to overcome personal privacy interests. This may mean injecting more editorial discretion into their practices. Internet players have long asked for the freedom to regulate themselves. But continued publication of everything, no matter how old or irrelevant — we can call it default publishing — looks less like editorial discretion and self-control than an unthinking automatic process. For the freedom of expression argument to succeed in the next right-to-be-forgotten case, publishers are going to have to start acting more like true publishers, making editorial choices about archival publishing.

Even American companies, although protected by the First Amendment from right-to-be-forgotten-like injunctions, may find lessons from the ECF’s skepticism about default publishing. A lot of Internet publishing in the last 20 years, like the continued publication of old content, has been driven more by technology than editorial choice. News websites welcomed anonymous commentators (often mean, nasty, and reckless), because the Internet made it possible. They left those comments unedited, because U.S. law (section 230 of the Communications Act) immunized them from liabilities for such content. Publishers that hosted creative content tolerated infringement, because the Digital Millennium Copyright Act placed the enforcement burden on others.

When in all kinds of future cases, European and American, Internet freedom of expression defenses are put to the test, the Google Spain case tells us that Internet publishers will be better positioned if they can show that their Internet publishing practices are careful expressions of their considered editorial discretion, not just automatic or default practices.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Thompson Coburn LLP | Attorney Advertising

Written by:

Thompson Coburn LLP
Contact
more
less

Thompson Coburn LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!