If you are looking for information about a specific person, Google is your best friend. A search made on the basis of a person’s name will produce a list of results which displays links to web pages containing information on the person in question. But what if you are the data subject and the data and links appeared in the search results are inadequate, incomplete and insensitive to your private life? In such cases you would probably like to request Google to remove the information and links from the list of search results. Question is: Do you have the right to be forgotten?
Mario Costeja González
The answer to this question has recently been given by the Court of Justice of the European Union (CJEU) in a case about Mario Costeja González, a Spanish national resident. When an internet user googled Mr. Costeja González, he would obtain links to two pages of La Vanguardia’s newspaper dating from 1998. These pages contained an announcement for a real-estate auction connected with garnishment proceedings for the recovery of social security debts owed by Mr Costeja González.
Mr Costeja González lodged a complaint with the Spanish Data Protection Agency, the AEPD. First, he requested that La Vanguardia be required either to remove or alter the pages 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. Second, he requested that Google be required to remove or conceal the personal data relating to him so that they no longer appeared in the search results and in the links to La Vanguardia. Mr Costeja González stated that the garnishment proceedings had been fully resolved for a number of years and that reference to them was now entirely irrelevant.
The AEPD rejected the complaint in so far as it related to La Vanguardia, taking the view that the information was legally published. However, the complaint was upheld with regards to Google. The AEPD took the view that it has the power to require the withdrawal of the data and the prohibition of access to the data.
Google brought actions before the National High Court of Spain claiming that the AEPD decision should be annulled. The Spanish court referred several questions to the European Court of Justice about these issues.
The Court of Justice of the European Union
The CJEU has decided that the search engine operator is, under certain circumstances, obliged to remove links to web pages that are published by third parties and contain information relating to a person from the list of results displayed following a search made on the basis of that person’s name. Such an obligation may also exist in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even when its publication itself on those pages is lawful.
The Court points out that a fair balance should be sought between the interest of internet users potentially interested in having access to the information on the one hand and, on the other hand, the data subject’s fundamental rights, in particular the right to privacy and the right to protection of personal data. This balance may depend on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information.
If certain information – having regarded all the circumstances relating to the case – appears to be inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes of the processing, the data and links concerned in the list of results must be erased. The Court adds that in particular it should be examined whether the data subject has a right that the information relating to him personally should no longer be linked to his name by a list of results displayed following a search made on the basis of his name. If that is the case, the links must be removed from the list of results, unless there are particular reasons, such as the role played by the data subject in public life, justifying the interest of the general public in having access to the information.
As regards Mr Costeja González the Court has decided that on the basis the foregoing the information and links must be removed form the list of results.
Under certain circumstances a search engine operator, such as Google, will be obliged to remove personal data and links from the list of search results. The Court has noted that a request for removal may be addressed directly to the search engine operator, which must then duly examine its merits. Please note that in the event the information and links in the search results list are erased, this does not mean that the data can no longer be found on the Internet. The search engine does not show the data in its search results, but the source of the information (the specific web page) will still be available.
For more information on this matter please contact our International Desk.
Floor de Roos
Member of the International Desk of Boels Zanders Advocaten