In the landmark judgment in Google Spain SL and Google Inc., v Agencia Espanola de Proteccion de Datos, Gonzales (13th May 2014), the CJEU found that Google is a data controller and is engaged in processing personal data within the meaning of Directive 95/46 whenever an internet search about an individual results in the presentation of information about that individual with links to third party websites. The judgment contains several findings which fundamentally affect the approach to data protection in the context of internet searches, and which may have far-reaching implications for search engine operators as well as other websites which collate and present data about individuals.
The case was brought Mr Costeja Gonzales, who was unhappy that two newspaper reports of a 16-year old repossession order against him for the recovery of social security debts would come up whenever a Google search was performed against his name. He requested both the newspaper and Google Spain or Google Inc. to remove or conceal the link to the reports on the basis that the matter had long since been resolved and was now entirely irrelevant. The Spanish Data Protection Agency rejected his complaint against the newspaper on the basis that publication was legally justified. However, his complaint against Google was upheld. Google took the matter to court, which made a reference to the CJEU.
The first question for the CJEU was whether Google was a data controller for the purposes of Directive 95/46. Going against the opinion of the Advocate General (see earlier post), the Court held that the collation, retrieval, storage, organisation and disclosure of data undertaken by a search engine when a search is performed amounted to “processing” within the meaning of the Directive; and that as Google determined the purpose and means of that processing, it was indeed the controller. This is so regardless of the fact that such data is already published on the internet and is not altered by Google in any way.
The Court went on to find that the activity of search engines makes it easy for any internet user to obtain a structured overview of the information available about an individual thereby enabling them to establish a detailed profile of that person involving a vast number of aspects of his private life. This entails a significant interference with rights to privacy and to data protection, which could not be justified by the economic interests of the search engine operator. In a further remark that will send shockwaves through many commercial operators providing search services, it was said that as a “general rule” the data subject’s rights in this regard will override “not only the economic interest of the operator of the search engine but also the interest of the general public in finding that information upon a search relating to the data subject’s name” (at paras 81 and 97). Exceptions would exist, e.g. for those in public life where the “the interference with…fundamental rights is justified by the preponderant interest of the general public in having…access to the information in question”.
However, the Court did not stop there with a mere declaration about interference. Given the serious nature of the interference with privacy and data protection rights, the Court said that search engines like Google could be required by a data subject to remove links to websites containing information about that person, even without requiring simultaneous deletion from those websites.
Furthermore, the CJEU lent support to the “right to be forgotten” by holding that the operator of a search engine could be required to delete links to websites containing a person’s information. The reports about Mr Costejas Gonzales’s financial difficulties in 1998 were no longer relevant having regard to his right to private life and the time that had elapsed, and he had therefore established the right to require Google to remove links to the relevant reports from the list of search results against his name. In so doing, he did not even have to establish that the publication caused him any particular prejudice.
The decision clearly has huge implications, not just for search engine operators like Google, but also other operators providing web-based personal data search services. Expect further posts in coming days considering some of the issues arising from the judgment.
Akhlaq Choudhury