The "Google case" - right to be forgotten by search providers

„Dumm hat Glück” - stupid is lucky, says the German. Sometimes lazy people also have luck: I did not have the energy to comment about the „right to be forgotten” case involving Google search results but recent days brought new developments, so I have an occasion to make up for this.

We read from time to time that “Google is evil”. Even Google gives nice results for this. And we also read sometimes interesting reactions to that. But it is not just Google. What appears once on the net, will stay there (or at least in references or at least in the cache of some computer) forever. So Viviane Reding, vice-president of the European Commission responsible for Justice, fundamental rights and citizenship made the “right to be forgotten” an important element of the EU data protection reform. We will give links to more recent materials on the reform below, and the blog quoted above also carries an analysis of the judgment of the European Court of Justice.

The case will be called “Google Spain”, it carries the number C-131/12 and the judgment can be found here . It says that the operator of a search engine is responsible for the processing it executes on personal data which appear on web pages of third parties and is obliged to remove the data from its search results on a legitimate request of the data subject, even if the data remain on the original web page. There are conditions, however, among others for the processing to fall under European law, and the Court also explained one aspect of the legitimacy of the request.

A Spanish citizen sued Google to remove from its search results data concerning him. The Court found that given that Google has an operation in Spain whose activity was found to be related to presenting the search results to Spanish users. The processing of the data and the presentation of search results was not done by Google Spain, who was only selling advertisements to be shown on the Spanish search result pages. This was sufficient for the Court to say that the activity was related. On the other hand, the Court also said that there may be reasons of overriding public interest which would justify that the search engine does not remove the data from its search results.

What is important in this judgment, that although the “right to be forgotten” will only be enshrined (if the Member States and the European Parliament approve – see a recent argument by the British minister of Justice) in new data protection regulation now under preparation, it already recognised based on the present legal framework that data subjects have the right not only to request the deletion of their data from the records of those who process their data, but also the indirect appearance of these data on the Internet.

This of course has consequences to all who provide references to data others put on the web. But also means that even if some data cannot be deleted (like official documents published), they may have to disappear from secondary sources, thus making finding this information more difficult or even impossible. If will be an interesting question whether the search results of the primary publisher of the information also will have to “forget” the information.

The saga is, however continuing as Google receives thousands of requests to remove information from its search results, and took an overly cautious approach and removed links to several articles on a public personality but was forced to retreat and reinstate the references.

For those who want to read more, here is a thorough analysis. And the Guardian, who was one of those whose articles were removed, who gave also a good reporting of the case.

On data protection reform, here is the latest text under discussion by the Council.