Is There A Right To Be Forgotten? The Court of Justice of the European Union Says “Yes”.

by Butler Snow LLP
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Since Google, a web search engine provider, became a multi-billion dollar company, it has steadfastly refused to remove internet search results on a discretionary basis.  In fact, Google support expressly provides that “[t]here is very little that we remove from search results on a discretionary basis.” (See Remove information from Google).  Furthermore, even where Google receives a proper legal notice requiring removal of certain content, the “legal notice may be sent to the Chilling Effects project (http://www.chillingeffects.org) for publication and annotation.”  (See Removing Content From Google).  According to Google: “Chilling Effects is a joint project between law schools in the United States that seeks to provide a database and information on the requests to remove information from the internet.” (Id.)

Consequently, Google will typically decline any request to remove defamatory content in the absence of a Court Order.  Google will simply refuse to remove any information from a search result that contains accurate information about a data subject (i.e., the subject matter of the information).  Thus, where a data subject seeks to remove accurate information from the internet simply because it is aged and/or no longer relevant, he or she is likely out of luck.

Until Now.  Maybe.  A recent decision by the Court of Justice of the European Union has placed some obligations on Google (and other web search engine providers) in European countries.  In Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (AEPD), Mario Costeja González, Case C-131/12, the Court of Justice held that, where a website domain master refuses to remove certain information on request, a data subject may seek the removal of that domain from a list of search results produced by a web search provider.

In that case, Costeja González sought, among other things, an order requiring Google Spain or Google Inc. to remove or conceal the personal data relating to him so that the data no longer appeared in the search results or in links.  Specifically, Mr. González wanted to remove references to attachment proceedings that had been commenced against him over 15 years earlier and which had been fully resolved.  In essence, Mr. González argued that, while the information related to him was true, he was entitled to have that information be “forgotten” after a certain period of time.

The Court of Justice agreed. According to the Court,

even initially lawful processing of accurate data may, in the course of time, become [inappropriate] where, having regard to all the circumstances of the case, the data appear to be inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed. … [W]hen appraising such a request made by the data subject in order to oppose the processing carried out by the operator of a search engine, it should in particular 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 that is displayed following a search made on the basis of his name. If that is the case, the links to web pages containing that information must be removed from that list of results.

(See Press Release No. 70/14 (May 13, 2014)).

The Court of Justice acknowledged that, while its judgment could have a chilling effect on an internet user’s interest in access to information, “a fair balance should be sought in particular between that interest and the data subject’s fundamental rights, in particular the right to privacy and the right to protection of personal data.”  (Id.)  The Court further stated that, as a general rule, a data subject’s rights to privacy override the interests of internet users. (Id.)

Does the Court of Justice’s ruling indicate the “Return of Privacy”? Will American Court’s recognize a fundamental “Right to be Forgotten”?  At this time, it’s tough to say. However, based upon the Court of Justice’s recent opinion, the interplay between the First Amendment and the Right to be Forgotten will likely be the subject of extensive litigation sooner than many may have expected.

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