With the seminal judgment in Google Spain, aka the Costeja ruling, having excited more comment than any CJEU judgment in recent years, Laurence Eastham offers some pointers to what has happened since and what has been said about the judgment. Note that this article was created for the magazine and is posted online merely for completeness.
Mario Costeja González applauded the ruling. He is quoted as saying 'Like anyone would be when you tell them they're right, I'm happy. … if Google was good before, now it's perfect. I was fighting for the elimination of data that adversely affects people's honour, dignity and exposes their private lives. Everything that undermines human beings, that's not freedom of expression.'
Google, having initially reacted with scarcely concealed consternation, has already published a form for completion by those seeking to have links removed. The procedure appears to be an adaptation of established procedures for the take down of material and links that are related to copyright breaches or harassment. It describes its form for applications for deletions as an 'initial effort'. Google state:
'we will assess each individual request and attempt to balance the privacy rights of the individual with the public's right to know and distribute information. When evaluating your request, we will look at whether the results include outdated information about you, as well as whether there's a public interest in the information—for example, information about financial scams, professional malpractice, criminal convictions, or public conduct of government officials'.
Google has also established an expert panel to help strike a balance between freedom of information and people's rights. The panel includes former Google chief Eric Schmidt, Wikipedia founder Jimmy Wales, Oxford Internet Institute ethics professor Luciano Floridi, Leuven University law school director Peggy Valcke, former Spanish data protection agency director Jose Luis Pinar and UN envoy on freedom of expression Frank La Rue. Given that Eric Schmidt and Jimmy Wales condemned the CJEU ruling (the latter in apocalyptic terms), there will be some interesting discussions. Luciano Floridi's view (Guardian, 4 June) was more nuanced – some might say short on practicality. At least Peggy Valcke appears to have a handle on the issues. Whether any of their opinions matter remains to be seen.
The Article 29 Working Party issued a press release stating that they have 'decided to analyse the consequences of the CJEU ruling and to identify guidelines in order to develop a common approach of EU data protection authorities on the implementation of the ruling' – which sounds suspiciously like they have not decided anything. The guidelines, when there are some (recent hints suggest September), will aim to help data protection authorities build a coordinated response to complaints of data subjects if search engines do not erase their content whose removal has been requested. Consultations with 'the relevant stakeholders' (whoever they may be) will take place in due course.
In the meantime, the DP authorities 'invite search engines to put in place user-friendly and pedagogical tools for the exercise by their users of their right to request the deletion of the search results links containing information relating to them. More generally, search engines should ensure compliance with the opinion of the WP29 on data protection issues related to search engines (WP148)'.
The ICO had a more useful response. While welcoming the judgment, it indicated that it would not be ruling on any complaints 'until the search providers have had a reasonable time to put their systems in place and start considering requests' and thereafter it would focus 'on concerns linked to clear evidence of damage and distress to individuals'. The ICO response indicates that it believes 'the judgment provides space to strike a balance between the right to privacy and the public's right to know, recognising the role search engines play in facilitating access to information in today's society', although whether it really strikes that balance is, as Steve Peers suggests on p 3, the million dollar question.
Since Julia Powles has produced an indispensable guide to academic comment on the issue: http://www.cambridge-code.org/googlespain.html, there is little that I can do here but earnestly encourage you to read the material collected there. That guide goes beyond collating links to published views; it summarises those views too and, though its main focus is academic contributions, it ranges more widely and covers many serious inputs from practitioners.
Much of the academic comment focuses on disabusing notions about the judgment that were so prominent in the popular press – pointing out that it is really not going to change much and that it reinforces a human approach and is in line with data protection trends.
One disturbing feature of the comment generally has been the focus on the so-called right to be forgotten and the relative neglect of the jurisdictional issues that may prove to be equally important.
My call to SCL members for comment did not result in an avalanche of views – perhaps most had exhausted their perceptions in client alerts. Nigel Miller of Fox Williams LLP said:
'The search engine is placed in the invidious position of having to act as judge and jury and balance the interests of the individual as against the public interest. It remains to be seen whether they will decide that it is easier to grant requests which appear to be genuine or to refuse requests unless and until a court order is obtained. Questions remain as to what liability they may face if they decide not to remove links which a court later decides should have been removed. … the ECJ decision … will continue be a key issue over coming months not only for search engines but also for social media platforms and others who host content which includes personal data. It also highlights the direction of travel and focuses attention on the proposed new EU Data Protection Regulation, which has for some time included a specific "right to be forgotten" (re-titled in the latest draft as a "right to erasure").'
Michael Wigley offered this:
'Google is under regulatory and legal attack on various fronts, and gives the appearance of reacting as a firm with huge market dominance often does. It's fighting, seemingly under siege, from Fortress Google. European examples include this data protection case … and the anti-trust action by the Commission. A key strategic call for dominant firms is the fight versus rapprochement decision. Fight too hard and regulators and legislators can end up making things worse for the firm than a more conciliatory approach would produce. But dominant firms can also stave off incursions by aggression too, sometimes for many years. Too often though, the people under siege in the fortress cannot see the bigger picture. The myopia can lead to the wrong calls. Is Google getting it right on fight versus rapprochement?'
Jonathan Goldsmith in the Law Society Gazette stated 'Until now, solutions to knotty questions of privacy and free speech on the internet have in the main been decided not by the law nor by the courts, but by the commercial interests of the huge operators. … someone in a position to do something about it has at last drawn up an initial template for rights and duties in a sector without full regulation.'
Some of the more alternative comment has been fascinating too – I am quite fond of Donal Blaney's dismissal of the whole issue from 'the land of the free', essentially arguing that Google can ignore the judgment and dare the EU to go after it in the USA. He may even be right. After all, no less an authority that Dr Chris Pounder has described the holes in the Google procedure as giving 'the proverbial two fingers to Europe's highest Court', arranging procedures so as to evade its judgment.
My favourite misinterpretation of the judgment, and a demonstration of ignorance of French mores to boot, is from Stewart Baker, former assistant secretary for policy at the U.S. Department of Homeland Security, who was quoted as saying 'Americans will find their searches bowdlerized by prissy European sensibilities. We'll be the big losers. The big winners will be French ministers who want the right to have their last mistress forgotten.'