By Larry Cohen and Gail Crawford

While the popular press has been full of stories about the European Court of Justice’s (“ECJ”) ruling creating a “right to be forgotten” (ahead of the still pending Data Protection Regulation), we will focus on both the ruling as well as the specific questions referred to the ECJ that have far-reaching ramifications for global companies such as the test for applicability of national data protection laws. 

First, some background on the facts of the case.  In 2010 a Spanish national filed a complaint with the Spanish Data Protection Agency (“AEPD”) against the daily newspaper La Vanguardia as well as against Google Spain and Google Inc.. The lawsuit was based on the fact that when his name was entered into Google’s search engine, two articles containing his name were indexed or appeared in the search results, linking to La Vanguardia news articles on 19 January 1998 and 9 March 1998. The articles mentioned his name in connection with a real-estate auction for the settlement of social security debts. While the AEPD rejected the complainant’s request that La Vanguardia remove the two pages in question on the basis that the newspaper had published the information upon order from the Spanish Ministry of Labour and Social Affairs to give publicity to the auction, AEPD upheld the complaint against Google and ordered both Google Spain and Google Inc. to remove links to the relevant webpages from the search results.

Both Google Inc. and Google Spain separately appealed this decision at the Spanish High Court on the following grounds:

  • Google Inc. as a search engine operator was not within the scope of the Directive.
  • Google Spain was not responsible for the search engine; it only promoted advertising.
  • The search function did not process any personal data, but even if it did neither Google Inc. nor Google Spain could be regarded as data controllers.
  • The individual did not have a general right to the removal of lawfully published material.

The Spanish High Court subsequently referred four key questions relating to the interpretation of Directive 95/46 (the “Directive”) to the ECJ. The ECJ’s opinion on these four key points is set out below.

1. Do the activities of a search engine fall within the definition of “processing personal data” as set out in Article 2(b) of the Directive, and, if so, is the operator of a search engine a controller in respect of that processing as set out in Article 2(d) of the Directive?

The ECJ held that the activities of a search engine – consisting of finding information published or placed on the internet by third parties, indexing it automatically, storing it temporarily and making it available to users in a specified order of preference –  classify as “processing of personal data” if the information contains personal data, as these activities are expressly referred to in Article 2(b). Whether or not the information has already been published in the media in unaltered form was not deemed relevant in accordance with Case C-73/07 Satakunnan Markkinapörssi and Satamedia. Further, the ECJ found that as it is the search engine operator that determines the purpose and means of the processing of personal data, the search engine operator must be considered the controller in respect of that processing. As the search engine operator, Google Inc. is therefore considered the controller, with Google Spain being an “establishment” of Google Inc. within the territory as defined in Article 4(1)(a) of the Directive (see below). 

2. Under what circumstances do the provisions of Article 4(1)(a) apply such that the processing of personal data by a search engine takes place in the context of the activities of an establishment of the controller in a Member State?

Under the Directive, personal data processing does not necessarily have to be carried out by the establishment of the controller itself in order for the Directive to apply – it is sufficient for the processing to be carried out “in the context of the activities” of the establishment, and this wording is not interpreted restrictively (Case C-324/09, L’Oréal and Others para 62-63) allowing for the broad territorial scope envisaged by recitals 18 to 20 of the Directive. The ECJ held that if a branch or subsidiary of a search engine operator in a Member State promotes and sells advertising space and steers its activity towards the inhabitants of that Member State, then the processing is considered to be carried out “in the context of the activities” of the establishment. The provisions of the Directive therefore apply to Google Inc. according to the ECJ.

3. Is the operator of a search engine obliged under Articles 12(b) and 14(a) of the Directive to remove specific links from the list of results arising from a search based on a person’s name if this information is lawfully published by third parties?

Under the Directive all processing of personal data must meet the requirements of data quality set out in Article 6. These include that the personal data is processed “fairly and lawfully”, is “collected for specified explicit and legitimate purposes and not further processed in a way incompatible with those purposes”, that the processing is “adequate, relevant and not excessive in relation to the purposes for which it is collected and / or further processed”, that the data is “accurate and where necessary, kept up to date”, and that it is “kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data was collected or for which it is further processed”.

Further the processing has to be legitimate under one of the provisions of Article 7, which permits the processing of personal data where it is necessary for the purposes of the legitimate interest pursued by the controller or by the third party to whom the data is disclosed, except where such interests are overridden by the interests or fundamental rights of the data subject, in particular his right to privacy with respect to the processing of personal data.

In balancing these two opposing rights, the ECJ considered that the processing of personal data by a search engine operator could significantly affect the fundamental rights to privacy and to the protection of personal data when a search is carried out on an individual’s name, on the basis that the processing enables any internet user to obtain a structured overview of the information available on an individual in a manner that otherwise would not have been possible or could only have been established with great difficulty. This outweighed any economic interest of the search engine operator, and it was therefore held that search engine operators are obliged to remove from the list of results displayed following a name-search any links to web pages published by third parties that did not comply with the individual’s rights under the Directive.

4. Can a data subject compel the operator of a search engine to remove from the list of results arising from a search based on the data subject’s name links to webpages published lawfully by third parties containing true information relating to the data subject on the grounds that the information may be prejudicial to the data subject or that the data subject wishes for the information to be “forgotten” after a certain time?

Here it was considered that over time, processing that was initially lawful could become incompatible with the Directive in certain circumstances, in particular where the data was no longer necessary in the light of the purposes for which it was initially collected or processed or if it had become inadequate, irrelevant or excessive. In such circumstances, it was held that the information and links in the search results would have to be erased. The processing of personal data has to be lawful under the Directive for the entire period in which it is carried out.

In fulfilling a request by a data subject for such removal of links, search engine providers would have to determine whether the data subject has a right for the information relating to him to no longer be associated to his name by the search results as his rights to privacy at that point outweigh the right of Google to publish that data. It was not considered necessary for the data subject to be prejudiced by the appearance of the information in search results. On the facts of the case, it was held that the data subject established a right that the information should no longer be associated to his name by virtue of (a) the sensitivity of the information to the data subject’s private life and (b) the fact that the initial publication had taken place 16 years ago. It was further pointed out that the interest of the public in having access to the information would have to be considered as well, although on the facts this was not considered relevant to the case.

The ECJ weighed the right to freedom of expression under the European Convention of Human Rights and the fundamental right to privacy and protection of personal data under the Charter of Fundamental Rights of the European Union and found that, in this case, the balance tipped in favour of an individual’s right to privacy and brought into existence a “right to be forgotten” ahead of its legislative adoption in the still pending Data Protection Regulation.

This post was prepared with the assistance of Yasmina Borhani  in the London office of Latham & Watkins.