A European Court ruling that ordinary people have a "right to be forgotten" is a good outcome for “ne'er-do-wells who will now be able to bury their misdeeds in anonymity”, says media lawyer Mark Stephens.
In Google Spain v AEPD and Mario Costeja Gonzalez (C-131/12), the Court of Justice for the European Union (CJEU) ruled that Google must delete "inadequate, irrelevant or no longer relevant" data from its results when an individual requests it.
The case was referred to the CJEU after a Spanish lawyer complained that an auction notice of his repossessed home on Google's search results infringed his privacy.
The CJEU found that Google was a data processor and a data controller for the purposes of the Data Protection Directive (DPD) – meaning Google has to have legitimate grounds to process personal data. However, Pannone associate David Cook says the court did not appear to properly consider Google’s rights in furthering its business interests or freedom of expression rights.
“My concern relates to a potentially chilling effect on internet freedoms which may be curbed as a result of this judgment. Search engines, social media and internet forums may now be compelled to respond to complaints made by individuals on the basis that those sites are publishing personal data that is argued to be too old to be relevant any more. Given that the material in question may be wholly accurate, this does not seem right.”
Stephens, a partner at HowardKennedyFsi, says the ruling risks creating a two-tiered internet, with searches in Europe returning dramatically different and less complete sets of results than will be available in the rest of the world.
He adds: “The social utility in academics, historians and plain old Joe Public being able to know the unvarnished truth outweighs that of an individual’s right to cover up the misdeeds of youth. Protecting privacy is indeed important, but the solution is not making companies create primped and preened bespoke search results for the rich and powerful.”
There is no appeal from the CJEU, meaning, says Professor Lorna Woods, of the School of Law and Human Rights Centre, University of Essex, that Google’s options are limited. “Google will have to argue persuasively before the Spanish court that the rights of users outweigh the applicant’s, or to re-refer the questions (unlikely to succeed), or to fight the case through the Spanish system and bring the case before the Strasbourg human rights court, with a very uncertain result there.”
