June 29, 2014

I would like to think that this is a ‘something for everyone’ issue. We had so many good articles available that I had to cut back on my plan to cover views of the Google Spain judgment in greater detail in order to fit more in. As it is, the e-pub readers still get a couple of bonus tracks – articles which are likely to appear in the next paper issue.

Despite the fact that the CJEU judgment on the Data Retention Directive was a development of major importance, I have chosen to feature the Steve Peers article on the Google Spain judgment on our front cover. I have a sneaking suspicion that the principles set out in the data retention case (which is covered by Julia Hörnle on p 10) will have a longer-lasting impact than the Google Spain/Costeja ruling but the interest in the latter has been unprecedented.

Although I have written a summary of developments since the judgment (see p 7), I find myself feeling bound to outline a view on Google Spain. It is a view that worries me because I find myself more sympathetic to the views of certain others than I am entirely comfortable with – but I long since learned that everybody is right some of the time. Putting the distortions and simplifications of the judgment aside, and indulging in behaviour that I have condemned in others (ie pretending it is a judgment just about the right to be forgotten), I cannot get past the failure of the court to say more about the public interest, or rather to put a greater weight on the value to the public of an individual’s natural desire to research a topic in which he or she has an interest. While we can all think of negative examples of obsessive research, great things have come from allowing individual’s access to information – comparisons with the days of the monks restricting access to books are overblown but this judgment does contain at its heart the merest echo of that.

The EU Commission and various commentators have tried to put the CJEU in a more positive light and to correct misinterpretations. That’s fine – there have been many misinterpretations which wildly exaggerate the impact of the judgment. But the EU Commission suggestion that a ‘case-by-case assessment is needed considering the type of information in question, its sensitivity for the individual’s private life and the interest of the public in having access to the information’ does not accurately reflect the court’s ruling. The CJEU did indeed mention the need to balance rights but I believe that the Court made a serious and crucial error in ruling that the interests of a data subject making an application ‘override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in having access to that information upon a search relating to the data subject’s name’. That ‘override’ is often glossed over but it seems to establish a balancing exercise where Cheryl Cole is on one scale and Christopher Biggins on the other – you can weigh them as often as you like but Biggins will always be heavier.

The CJEU did go on to say that the removal of search links might not be justified if ‘for particular reasons, such as the role played by the data subject in public life, … ‘. A lot hangs on that ‘such as’ but I would suggest that many are putting too much weight on a precarious hook.

The problem is exacerbated by the imbalance that naturally arises from the process. An applicant (data subject) with a case to make; a search engine with no real competition and no commercial interest in resisting applications; oversight from organisations that have the protection of privacy as a main function. Who has standing to make the argument against removal? If we are forced to rely on Google’s commitment to ethical behaviour then we are in trouble.

None of it may matter. Not only will we have EU data protection reform (one day, some day), we will, it seems, have www.google.com with all the EU removals intact. It will be clumsy to have to revert to that but I guess the committed will always do so.