Google court ruling anticipates an EU ‘right of erasure’ – to the alarm of many.
Imagine you have retired to set up a jellied eels stall in Montpellier. After a few months wondering why business is not going too well, you notice that any web search for ‘jellied eels in Montpellier’ throws up links to lurid newspaper reports of a 20-year-old court case involving extreme sexual practices and murder by poisoning. What are you going to do about it?
As of yesterday, it appears you may have a legal remedy. The Court of Justice of the European Union judgment in Google Spain SL, Google Inc v Agencia Espanola de Protection de Datos, Mario Costeja Gonazales ruled that search engine giant Google should remove from its search results links to old newspaper reports of proceedings against a Spanish individual.
The ruling, which seems to anticipate the ‘right of erasure’, previously known as the ‘right to be forgotten’, in a proposed new EU data protection regulation, caused consternation among advocates for free speech.
Lord Pannick QC reportedly described the judgment as ‘a surprising and regrettable decision which will have serious adverse implications for freedom of expression. The wish to be forgotten is impossible to reconcile with the right to impart and receive information, particularly on matters of public interest’.
On the other hand, Viviane Reding, the EU’s justice commissioner, welcomed the decision as ‘a clear victory for the protection of personal data of Europeans’.
For the moment, both sides may be overstating their case. The judgment observes that a ‘fair balance’ should be sought between the legitimate interest of internet users and the data subject’s fundamental rights, in particular the right to privacy and the right to 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.’
To me, the emphasis on private life suggests our jellied-eel merchant is out of luck. But we can expect plenty of 'victims' to try it on anyway. Publishers are bracing themselves for a wave of requests to remove data on the grounds that they are ‘inadequate, irrelevant or no longer relevant, or excessive in the relation to the purposes for which they were processed and in the light of the time that has elapsed’.
However by ruling that Google is a ‘controller’ within the meaning of the data protection directive, the CJEU has thrown down a challenge to the internet economy. On one hand, many will cheer at Google being forced to pay more respect to the jurisdictions in which it publishes – to grow up, in fact. Others will detect another blow to the concept of the internet as a worldwide common and to the EU as a place to do business.
The UK government has already staked its position: the prime minister’s adviser on the subject once described the right to be forgotten as a ‘demented’ proposal. For what it's worth, I agree.
I suspect we shall be hearing a lot more about this clash of philosophies in the months to come.
Michael Cross is Gazette news editor