Faculty of Law, Aristotle University of Thessaloniki
The right to be forgotten is a new right that is introduced in the Draft Proposal for a General Data Protection Regulation of 2012, which has been widely discussed. Critics, on the one hand, disagree with its necessity and hold the view that it represents the biggest threat to free speech on the Internet in the coming years. Viviane Reding, former EU Justice Commissioner and currently Vice-President of the EU Commission, on the other hand, described this right as a modest expansion of existing data privacy rights. The ECJ with its decision of 13 May 2014 in case C-131/12 confirmed this view, interpreting the provisions of Directive 95/46/EEC in such a way as to include a right ‘to be forgotten’ on the Net. The case referred particularly to search engines and their obligation to remove links to web pages from their lists of results, following requests of data subjects on the grounds that information should no longer be linked to their name by means of such a list and taking into account that even initially lawful processing of accurate data may, in the course of time, become incompatible with the directive where those data are no longer necessary in the light of the purposes for which they were collected or processed. This ruling addresses only one aspect of the ‘right to be forgotten’, which concerns the role of Internet Intermediaries, but has wider implications that need to be examined.
Keywords: Freedom of speech, right to be forgotten, right to oblivion, data protection, search engines, digital forgetting
In 2012, the EU Commission presented the proposal for a Regulation on the protection of individuals with regard to the processing of personal data and on the free movement of such data (‘General Data Protection Regulation’, GDPR), repealing Directive 95/46/EEC, with the aim to modernize the legal framework for data protection in the EU. A central provision in the proposed Regulation is Article 17 introducing the ‘right to be forgotten’ in the digital environment, which draws its origins from the ‘right of oblivion’ – or le droit à l’oubli, recognized by case-law in France and other countries (A. Mantelero).
The intended effect of the right to be forgotten is to enhance users’ rights on the Internet and remedy the lack of control over their personal data. It also presents an attempt to deal with the issue of digital forgetting, in other words, with the privacy issues arising in a Web that never forgets (Rosen, 2011). In more particular, in the digital age the ‘default of forgetting’ has gradually shifted towards a ‘default of remembering’ as pointed out by Mayer-Schönberder (Mayer-Schönberder, 2009), and this causes major privacy risks in a world of big data (Koops, 2011). This is a world in which it is almost impossible to escape the past, since every status update or photograph, and every tweet may be still available online, even if it has been deleted in its initial place.
In this context, the introduction of a right to be forgotten is the recognition of the enhanced capacity of cyberspace to disseminate and distribute huge amounts of data, including personal data, hence making it impossible to control the flow of personal information.
The provision of Article 17 GDPR basically includes a right to erasure of data that requires the controller to delete personal data and preclude any further dissemination of this data, but also to oblige third parties, e.g. search engines, etc., to delete any links to, or copies or replication of that data. This applies in four instances, which derive from data protection principles (Costa, Poullet, 2012): a) where data are no longer necessary in relation to the purposes for which they were collected or otherwise processed; b) where the data subject withdraws consent on which the processing is based or when the storage period consented to has expired and there is no other legal ground for the processing of the data; c) where the data subject objects to the processing of personal data; or d) where the data has been unlawfully processed.
The right to be forgotten which is enshrined in the GDPR is not conceived as an absolute right; thus, a number of exceptions restrict its ambit, the most important being the freedom of expression and information. There is consensus that such a right cannot amount to a right of erasure of history and turn our modern society into a society of ‘lotus eaters’ (Iglezakis, 2014), which would be the case if the Internet was programmed to forget, e.g. if Internet content was programmed to auto-expire (see Fleischer, 2011).
However, there are concerns expressed by US authors that this right will have chilling effects on free expression, as it might force Internet intermediaries to censor the contents that they publish or to which they link, and hence, lose their neutral status (see, e.g., Rosen, 2012, Fleischer, 2011).
Viviane Reding, the former EU Justice Commissioner and current Vice-President of the EU Commission, pointed out that this right builds on already existing rules, and is not an ex novo right (Redding, 2012). Indeed, the European Union Court of Justice issued a decision on May 13 2014, in case C-131/12 (Google Spain SL, Google Inc. v. Agencia Espanola de Proteccion de Datos, Mario Costeja Gonzalez), in which it confirmed that view, as it found that the ‘right to be forgotten’ is rooted in the provisions of Directive 95/46/EEC. Consequently, Vivian Reding referred to this decision in a post on Facebook as a ‘clear victory for the protection of personal data of Europeans’.
It should be underlined that this decision comes one month after the decision of the Court in case C-293/12 and C0594/12 (Digital Rights Ireland and Seitlinger and Others), which declared the Data Retention Directive to be invalid. This does not suggest that the EU Court is carrying out judicial activism in favor of informational privacy, since the rulings in both cases are justified. It is a clear message, nevertheless; particularly as far as the Google case is concerned, it is clear that the Court supports the reform of the EU legal framework on data protection and the introduction of a control right, such as the ‘right to be forgotten’.
Moreover, it is evident that the ruling of the CJEU in this case, which recognized a right to have Google delete links to data that are irrelevant and outdated, will have significant repercussions, particularly to Internet companies, such as search engines. Google, shortly after the decision was issued, received certain takedown requests; more specifically, an ex-politician seeking re-election demanded to have links to an article about his behavior in office removed, a man convicted of possessing child abuse images also requested links to pages about his convictions to be erased and, a doctor asked for the removal of negative reviews from patients from the results on searches. From Google’s perspective this represents a very negative situation, as it anticipates receiving an overflow of takedown requests, on the basis of the CJEU decision. It actually announced that it would create a new process for the erasure of data, which may take some time, as it this a complicated task.
Thus, it should be discussed whether this ruling is actually a victory for data protection, and not an obstacle for the Internet, impeding its potential by restricting free expression and information, and curtailing the right to conduct a business.
II. The ECJ decision in the Google case
1. The dispute and the request for a preliminary ruling
The dispute in this case arose when Mario Costeja González submitted a request against the editor of a Spanish newspaper (La Vanguardia Ediciones SL) and against Google Spain and Google Inc. due to the reason that a search of his name in Google produced articles published in that newspaper (‘La Vanguardia’) sixteen years ago concerning a real-estate auction connected with attachment proceedings for the recovery of social security debts. Mr. González sustained that the attachment proceedings concerning him had been fully resolved a number of years back and that reference to them was now entirely irrelevant.
Thus, he requested that the relevant pages of the La Vanguardia’s newspaper be removed or altered so that the personal data relating to him no longer appeared or to use certain tools made available by search engines in order to protect the data. He also requested that Google Spain or Google Inc. be required to remove or conceal the personal data relating to him so that they ceased to be included in the search results and no longer appeared in the links to that newspaper.
The Spanish Data Protection Agency (AEPD) rejected the complaint in so far as it related to La Vanguardia, for it considered that the publication by it of the information in question was legally justified; however, the complaint was upheld in so far as it was directed against Google Spain and Google Inc. Subsequently, Google Spain and Google Inc. brought separate actions against that decision before the National High Court. That court issued an order for reference to theCJEU, stating that Directive 95/46 must be interpreted in order to answer the question of what obligations are owed by operators of search engines to protect personal data of persons concerned who do not wish that certain information, which is published on third parties’ websites and contains personal data relating to them that enable that information to be linked to them, be located, indexed and made available to internet users indefinitely.
In particular the National High Court referred nine questions to the CJEU for a preliminary ruling, which concern: a) the territorial application of Directive 95/46, b) the activity of search engines as providers of content in relation to the Directive and c) the scope of the right of erasure and the right to object in relation to the ‘right to be forgotten’.
The Advocate General opined that the rights to erasure and blocking of data foreseen in Article 12(b) and the right to object foreseen in Article 14(a) of the Directive do not confer on the data subject a right to address himself to a search engine service provider in order to prevent indexing of the information relating to him personally, published legally on third parties’ web pages, invoking his wish that such information should not be known to internet users when he considers that it might be prejudicial to him or he wishes it to be consigned to oblivion.
The CJEU did not adhere to this view, but essentially granted a right to any Internet user to request that information be erased, if it considered it to be inadequate, irrelevant or no longer relevant. In particular, an analysis of this decision shall be undertaken in this paper.
2. The CJEU decision in more detail
The CJEU decision first addressed some preliminary issues. It examined whether Article 2(b) of Directive 95/46 is to be interpreted as meaning that the activity of a search engine as a provider of content which consists in finding information published or placed on the internet by third parties, indexing it automatically, storing it temporarily and, finally, making it available to internet users according to a particular order of preference must be classified as ‘processing of personal data’ within the meaning of that provision when that information contains personal data. And further, whether Article 2(d) of Directive 95/46 is to be interpreted as meaning that the operator of a search engine must be regarded as the ‘controller’ in respect of that processing of the personal data, within the meaning of that provision.
The Court made reference to previous case law in the Lindqvist case, in which it was held that the operation of loading personal data on an Internet page must be considered to constitute such processing. It then stated that the data found, indexed and stored by search engines and made available to their users include information relating to identified or identifiable natural persons and thus, ‘personal data’. Subsequently, it found that the operator of a search engine who collects personal data in that it explores the Internet automatically, constantly and systematically in search of information published there, then stores this data on its servers and discloses or makes such information available, carries out processing of personal data. It does not make any difference that such processing concerns material already published on the web, because the exemption of such cases from the field of application of Directive would deprive the Directive of its effect.
Consequently, the CJEU held that the operator of a search engine must be held as a controller in respect of that processing, pursuant to Article 2(d), since it is the search operator which determines the purposes and means of that activity and thus of the processing of personal data that it itself carries out within the framework of that activity.
Next, the CJEU answered the question of the territorial application of Directive 95/46 in the affirmative. Although Google Search is operated and managed by Google Inc. which is established in the United States and does not carry out any activity directly linked to the indexing or storage of information contained on third parties websites, its subsidiary Google Spain attends the promotion and sale of advertising space in Spain and its activity is closely linked to Google Search. The activities of the operator of the search engine and those of its establishment situated in Spain are, according to the Court’s decision, inextricably linked and thus, the processing of personal data carried out for the purposes of the operation of the search engine takes place in the context of the commercial and advertising activity of the controller’s establishment on the territory of Spain. Subsequently, the CJEU interpreted the provision of Article 4 (1)(a) of the Directive as meaning that processing of personal data is carried out in the context of the activities of an establishment of the controller on the territory of a Member State, within the meaning of that provision, when the operator of a search engine sets up in a Member State a branch or subsidiary which is intended to promote and sell advertising space offered by that engine and which orientates its activity towards the inhabitants of that Member State.
Furthermore, the CJEU addressed the issue of the role played by an Internet Intermediary such as Google with regard to the provisions of the Directive imposing obligations on controllers. In particular, it discussed the question whether the operator of a search engine is obliged to remove from the list of results following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even when its publication in itself on those pages is lawful. Google Spain and Google Inc. relied on the argument that any request for removal of information must be addressed to the publisher of the website concerned, since it is he who is responsible for making the information public, who can defend the publication and who has the means to make it inaccessible.
The CJEU considered that an effective and comprehensive protection of data users could not be achieved if he had to obtain first or in parallel the erasure of the information relating to them from the publishers of websites, since information published on a website can be replicated very easily on other sites and the persons responsible for its publication are not always subject to EU legislation. It also mentioned that a publisher of a website may rely on the exception of Article 9 of the Directive, if the publication of information relating to an individual is carried out for journalistic purposes, but the operator of a search engine may not rely on such an exception. And in addition, it stressed that the activities of a search engine must be justified under Article 7 of the Directive and a weighing of interests at issue must be carried out under Article 7 (f) and Article 14 (a), while it should be taken into account that the inclusion in the list of results of information relating to a natural person, following a search, facilitates the finding of personal information and plays a decisive role in the dissemination of such information. Thus, this constitutes a more significant interference with the data subject’s fundamental right to privacy than the publication on the web page. Subsequently, the Court answered this question with assent.
The main issue at stake, however, was whether the relevant provisions of the Directive might serve as a legal basis for claims of removal of personal data from the list of search names displayed after a search is made on the basis of the name of an individual.
The CJEU considered first the provisions of Article 12 (b) of the Directive, which states that ‘Member States shall guarantee every data subject the right to obtain from the controller as appropriate the rectification, erasure or blocking of data the processing of which does not comply with the Directive, in particular because of the incomplete or inaccurate nature of the data’. The list of the reasons that justify such a claim is not an exhausting one, so the Court held that the incompatibility of the processing with the provisions of the Directive may also result from the fact that such data are inadequate, irrelevant or excessive in relation to the purposes of the processing, that they are not kept up to date, or that they are kept for longer than is necessary, unless they are required to be kept for historical, statistical or scientific purposes. This is a particular reference to the data quality principle as enshrined in the provisions of Article 6 (1) (c) to (e) of the Directive.
The Court further makes the argument that even initially lawful processing of accurate data may, in the course of time, become incompatible with the directive where those data are no longer necessary in the light of the purposes for which they were collected or processed. It is evident that this line of argumentation is influenced by the provisions of the Draft Regulation establishing the right to be forgotten and shows the commitment of the Court to the data protection reform process.
Subsequently, the Court applied this maxim to the circumstances of the case; it stated in particular that if a request by the data subject is made, in accordance with Article 12 (b) of the Directive, clarifying that the inclusion in the list of results displayed following a search made on the basis of his name of the links to web pages published lawfully by third parties and containing true information relating to him personally is, at this point in time, incompatible with Article 6(1)(c) to (e) of the Directive because that information appears, having regard to all the circumstances of the case, to be inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes of the processing at issue carried out by the operator of the search engine, then the information and links in the list of results must be erased.
Further, in case the data subject exercises his/her right to object on compelling legal grounds relating to his/her particular situation to the processing of personal data relating to him/her, according to Article 14 (a) of the Directive, the Court supported the view that where such requests are based on alleged non-compliance with the conditions laid down in Article 7(f) of the Directive, the processing must be authorized under Article 7 for the entire period during which it is carried out.
The time factor appears to play a role in this case, and thus, the Court found that in such requests it should be examined whether the data subject has a right that the information relating to him/her personally should, at this point in time, no longer be linked to his/her name by a list of results displayed following a search made on the basis of his name.
The CJEU went even further; it emphasized that the right of the data subject to request the removal of information from the search results of search engines is based on Articles 7 and 8 of the Charter of Fundamental Rights of the EU and these rights override not only the economic interest of the operator of the search engine, but also the interest of the general public in finding information concerning a data subject.
An exception from this rule is made in case the data subject is a public figure, because then the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of inclusion in the list of results, access to the information in question.
Finally, the Court made particular reference to the issue in the main proceedings concerning the display, in the list of results that the internet user obtains by making a search by means of Google Search on the basis of the data subject’s name, of links to pages of the on-line archives of a daily newspaper that contain announcements mentioning the data subject’s name and relating to a real-estate auction connected with attachment proceedings for the recovery of social security debts. The Court’s decision is that, taking into account the sensitivity of this information and the fact that this information had taken place 16 years earlier, the data subject substantiated a right not to have this information linked to his name by means of a list of search results.
The CJEU decision is addressing one aspect of the right to be forgotten as included in Article 17 GDPR and does amount to a comprehensive recognition of the right to be forgotten. Also, it only applies to Internet search engines and as far as it concerns the right to erasure links to information of data subjects by a list of results displayed following a search made on the basis of his name.
The most important consequence of this case law is that an Internet search service provider needs to put itself in the position of the provider of the web page, in which personal information is initially published and make a privacy assessment of the facts underlying the dissemination of personal information on the Internet. The Attorney General supported the view that this would have as a result that the service provider would need to abandon its intermediary function between the user and the publisher and assume responsibility for the content of the source web page, and when needed, to censor the content by preventing or limiting access to it.
This argument is not convincing, since an Internet search engine provider is not responsible for the initial publishing of information on the Internet, however, it provides a service, which has significant privacy implications as pointed out by the CJEU. Therefore, the provider of such services needs to assume responsibility for the processing of personal data which it undertakes. In our view, the removal of any links to websites does not constitute censorship, if it is ordered by a court or an administrative authority and on the basis of legitimate grounds to protect privacy.
However, the court decision did not elaborate as much as necessary on that aspect and on the relation between the obligations of a search engine provider as a controller and the safe harbor principles of the e-commerce Directive (2000/31), establishing a neutral position of Internet intermediaries.
Furthermore, the CJEU made only a brief reference to the need to reconcile privacy rights with the right to freedom of expression and freedom of the press. It is evident that the exceptions from the right to be forgotten should be clearly formulated by law or otherwise, be developed by case law, which would evidently take a lot of time.
In conclusion, it would be accurate to say that this decision leaves open questions that should be addressed by the EU legislator in the data protection reform process.
Jeffrey Rosen, Free Speech, Privacy, and the Web that Never Forgets, 9 J. on Telecomm. and High Tech. L. 345 (2011).
J. Rosen, The Right to Be Forgotten, 64 Stan. L. Rev. Online 88, February 13, 2012, online available at: http://www.stanfordlawreview.org/sites/default/files/online/topics/64-SLRO-88.pdf
Costa, L./Poullet, Y., Privacy and the regulation of 2012, CLSR 2012, pp. 254-262.
Koops, B.–J., Forgetting Footprints, Shunning Shadows. A Critical Analysis of the “Right to Forgotten” in Big Data Practice, scripted vol. 8, Issue 3, Dec. 2011.
V. Mayer-Schönberder, Delete: The Virtue of Forgetting in the Digital Age, 2009.
Alessandro Mandelero, U.S. Concern about the European Right to Be Forgotten and Free Speech: Much Ado about Nothing?, Contratto e impresa, 2012, pp. 727-740, online available at: http://porto.polito.it/2503514/
V. Reding, The EU Data Protection Reform 2012: Making Europe the Standard Setter for Modern Data Protection Rules in the Digital Age, Munich 22 January 2012, Speech/12/26.
I. Iglezakis, The right to digital oblivion and its restrictions, Thessaloniki 2014 (in Greek).
Peter Fleischer, Foggy Thinking About the Right to Oblivion, Privacy . . . ?(Mar. 9, 2011), online available at: