The Right To Be Forgotten – What Does It Really Mean?

by Dorsey & Whitney LLP

In a decision with far-reaching consequences, the European Court of Justice (located in Luxembourg) (“ECJ”) ruled on May 13, 2014, that E.U. citizens can demand that search engines – in this instance Google – must delete content at the request of individuals, even if that content is factually correct and made publicly available by the source from which the search engine obtained it. While the full implications of the ruling remain to be determined, some initial observations are noteworthy:

  • The right is not absolute. Any request to remove links must be balanced against the “preponderant interest of the general public.”
  • Each E.U. member state may have to provide, at least initially, its own interpretation of how the ruling should be applied. Expect to see the balancing test noted above applied quite differently, just as each member state now individually interprets and implements basic data protection directives.
  • Each search engine operator will have to decide how to implement the ruling until more detailed guidance is provided. Takedown requests, while not unheard of in situations like copyright infringement and egregious situations of highly offensive content, will now become significantly more nuanced and complex, and certainly more numerous. Search engine operators will be challenged to define what constitutes the interests of the general public in full and free access to information that remains in the public domain, as balanced against a particular individual’s interest in suppressing access to embarrassing or unflattering – but factually correct – information about them.

Case Background

In 2009, Mario Costeja González asked a major Spanish newspaper to block two postings on its website dated March and January of 1998. The postings associated Mr. Costeja González with a real-estate auction for the recovery of debts. Mr. Costeja González argued the posts should be taken down because the issues regarding the debts had been resolved, and the articles were damaging to his reputation. Stating that publication of the auction had been required by the Spanish government in order to properly advertise for the auction, the newspaper refused to take down the posts.

Undeterred, in March of 2010, Mr. Costeja González filed a complaint against Google with the Spanish Data Protection Authority asserting that damaging information (the real estate posting) appeared when his name was entered into the Google search engine and the information should be removed by Google because it was no longer relevant. Google argued that it was not a “controller” of the data under Spain’s data protection law and, thus, was not subject to the takedown request. Google also noted that to the extent it performed any processing function with respect to the data in question, that activity occurred outside of Spain and, therefore, outside of the jurisdiction of the Spanish Data Protection Authority. The ECJ disagreed.

The ECJ found that the Google search engine played a “decisive role” in disseminating the data available through third party websites and that the indexing undertaken by a search engine constitutes “processing” pursuant to the E.U. Data Protection Directive. Further, the ECJ found that Google was a “controller” because through its indexing it engaged in decisions regarding the “purposes and means” of that indexing activity. In describing the specific processing activity of Google as distinct but connected to the processing that takes place when a website actually publishes data, the ECJ stated that “processing of personal data carried out in the context of the activity of a search engine can be distinguished from and is additional to that carried out by publishers of websites.”

The ECJ ruled that the “processing” performed by Google outside of Spain was “inextricably linked” to the advertising function performed by Google Spain, and, therefore, the Spanish data protection law, along with the authority of the Spanish Data Protection Authority, could reach Google’s processing activities in the U.S.

Practical Implications of the Decision

The ECJ ruling provides yet another example of the cultural and legal tension between the value placed on unfettered free speech, particularly in the U.S., and the ever-expanding protection of individual privacy in the E.U. Further, while the ECJ’s decision does not directly impact the Safe Harbor negotiations currently underway between the E.U. and the U.S., it underscores the challenges of balancing these competing cultural values, which may prove increasingly difficult as the implications of the ECJ’s ruling fully unfold. As an example, U.S. companies that provide links to search engines through their own websites will need to consider the potential implications of providing a searchable function, even to discreet parts of the Internet, that could produce references to E.U. citizens.

In some very important respects, the ruling generates more questions than it answers. Until more definitive guidance is provided by the Data Protection Authorities in each of the E.U. Member States, or the EU passes its long-pending General Data Protection Regulation, those potentially subject to takedown requests will have to anticipate how each Member State might balance the value of the right to be forgotten against the removal of links using the “preponderant interest of the general public” standard. U.S. companies can expect to see a significant increase in the number of E.U. citizens requesting the deletion of links and filing complaints with their respective Data Protection Authorities against search engines unwilling to oblige. Historically, search engine operators have vigorously protected unfettered access to public information and resisted self-censorship. Whether search engine operators will sustain that commitment going forward remains to be seen given the time, effort, and potential cost associated with resisting what is certain to be a groundswell of requests for link removal.

Another critically important question presented by this ruling is the jurisdictional reach of the E.U. Data Protection Authorities. The ECJ’s ruling has the potential to encourage E.U. Data Protection Authorities to assert jurisdiction over U.S. search engine operators, and potentially even websites linked to such search engines, even if all the processing and storage of the individual’s data is based in the U.S.

Perhaps the only conclusion that can be drawn for certain is that the right to be forgotten will be the topic of significant legislative and judicial activity in the E.U. for quite some time to come.


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.

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