There is no “right to be forgotten” by search engines, says top EU court advisor
By Jennifer Baker
The senior advisor to Europe’s top court said Tuesday that Google is not responsible for third party information in its search results and that there is no general “right to be forgotten” under the current data protection laws.
In a formal opinion to the European Court of Justice (ECJ), Advocate General Niilo Jääskinen wrote that search engine service providers are not responsible, on the basis of the current Data Protection Directive, for personal data appearing on web pages they process.
When the Directive was adopted in 1995, Internet search engines were a new phenomenon and, according to Jääskinen, their current role as de facto gatekeepers to the Internet could not have been foreseen by the legislators. He says that, as such, Google cannot be considered a ‘controller’ of personal data under the rules as they were established nearly 20 years ago.
It therefore follows that national data protection authorities cannot require a search engine to remove information from its index. Jääskinen adds that rights to rectification, erasure or blocking of data only apply if there is incomplete, inaccurate, libellous or criminal information.
One exception is if the original publisher of a web page includes ‘exclusion codes’, which advise search engines not to index, store or display a page in search results.
The opinion comes after a Spanish case was referred to the ECJ. In early 1998, a Spanish newspaper published an announcement about a real-estate auction ordered by the Spanish Ministry of Labour and Social Affairs due to social security debts. This information was also made available online by the paper.
In November 2009 the individual named as the owner of the property contacted newspaper publisher to complain that, when his name was entered in the Google search engine, a link to the announcement appeared in the search results. He argued that the proceedings had been concluded and resolved many years earlier and were now of no relevance. The newspaper replied that erasure of his data was not appropriate, particularly given its official status.
In February 2010, he contacted Google Spain and requested the search engine to remove links to the newspaper in search results associated with his name. He also lodged a complaint with the Spanish Data Protection Agency (AEPD), which initially upheld the complaint against Google but rejected the complaint against the publisher. Google appealed the decision in the Spanish High Court, which referred it to the ECJ.
The Advocate General also considered the geographic scope of the case and said that when a company is involved in targeted advertising in a particular country, the national data protection legislation of that country is applicable, even if the technical data processing takes place elsewhere.
Although the Advocate General’s Opinion is not binding on the ECJ, the court ruling usually follows his independent advice.
Bill Echikson, Head of Free Expression, Google EMEA welcomed the Opinion. “This is a good opinion for free expression. We’re glad to see it supports our long-held view that requiring search engines to suppress ‘legitimate and legal information’ would amount to censorship,” he said.
The Data Protection Directive is currently undergoing an overhaul and the inclusion of a universal right to be forgotten, as proposed by E.U. Justice Commissioner Viviane Reding, is proving one of the stumbling blocks. The Opinion from Jääskinen suggests that such a right would indeed be a new development.
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