The CJEU has ruled that an Internet search engine operator can be responsible for the processing that it carries out of personal data which appears on web pages published by third parties. This may be the practical embodiment of the ‘right to be forgotten’. The case also provides important new guidance on jurisdictional issues and the scope of EU data protection.
In Case C-131/12 Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González the Court of Justice of the European Union has made a landmark ruling extending the potential liability of search engines. It has ruled that a search engine, in this case (as so often) Google, can be liable for the processing that it carries out of personal data which appears on web pages published by third parties. So, if a search made on the basis of a person's name produces a list of results which displays a link to a web page containing information on the person in question, that data subject may approach the operator directly to ask for the link to be removed and, where the operator does not grant his request, bring the matter before the competent authorities in order to obtain, under certain conditions, the removal of that link from the list of results.
As we all know, Directive 95/46/EC (usually, but slightly misleadingly, referred to as the Data Protection Directive) has the declared objective of protecting the fundamental rights and freedoms of natural persons (in particular the right to privacy) when personal data are processed, while removing obstacles to the free flow of such data. It is the interpretation of that Directive that was at stake in this case.
In 2010 Mario Costeja González, a Spanish national, lodged with the Agencia Española de Protección de Datos (Spanish Data Protection Agency, the AEPD) a complaint against La Vanguardia Ediciones SL (the publisher of a daily newspaper with a large circulation in Spain, in particular in Catalonia) and against Google Spain and Google Inc. Mr Costeja González contended that, when an internet user entered his name in the search engine of the Google group, the list of results would display links to two pages of La Vanguardia's newspaper, of January and March 1998. Those pages contained an announcement for a real-estate auction organised following attachment proceedings for the recovery of social security debts owed by Mr Costeja González.
In his complaint, Mr Costeja González requested, first, that La Vanguardia be required either to remove or alter the pages in question (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 Spain or Google Inc. be required to remove or conceal the personal data relating to him so that the data no longer appeared in the search results and in the links to La Vanguardia. In this context, Mr Costeja González stated that the attachment proceedings concerning him had been fully resolved for a number of years and that reference to them was now entirely irrelevant.
The AEPD rejected the complaint against La Vanguardia, taking the view that the information in question had been lawfully published by it. On the other hand, the complaint was upheld as regards Google Spain and Google Inc. The AEPD requested those two companies to take the necessary measures to withdraw the data from their index and to render access to the data impossible in the future. Google Spain and Google Inc. brought two actions before the Audiencia Nacional (National High Court, Spain), claiming that the AEPD's decision should be annulled. The Spanish court referred a series of questions to the Court of Justice on these issues.
Perhaps all that follows might have been guessed from the fact that the CJEU prefaced its judgment with quotations from the preamble to the Data Protection Directive. In particular, the Court reminds us that the preamble states 'data-processing systems are designed to serve man; … they must, whatever the nationality or residence of natural persons, respect their fundamental rights and freedoms, notably the right to privacy, and contribute to … the well-being of individuals'.
Processing and Controller
The CJEU has held that by searching automatically, constantly and systematically for information published on the Internet, the operator of a search engine 'collects' data within the meaning of the Directive. The Court considers, furthermore, that the operator, within the framework of its indexing programmes, 'retrieves', 'records' and 'organises' the data in question, which it then 'stores' on its servers and, as the case may be, 'discloses' and 'makes available' to its users in the form of lists of results. Those operations, which are referred to expressly and unconditionally in the Directive, must be classified as 'processing', regardless of the fact that the operator of the search engine carries them out without distinction in respect of information other than the personal data. The Court also points out that the operations referred to by the Directive must be classified as processing even where they exclusively concern material that has already been published as it stands in the media. A general derogation from the application of the Directive in such a case would have the consequence of largely depriving the Directive of its effect.
The Court further holds that the operator of the search engine is the 'controller' in respect of that processing, within the meaning of the Directive, given that it is the operator which determines the purposes and means of the processing. The Court observes that, inasmuch as the activity of a search engine is additional to that of publishers of web sites and is liable to affect significantly the fundamental rights to privacy and to the protection of personal data, the operator of the search engine must ensure, within the framework of its responsibilities, powers and capabilities, that its activity complies with the Directive's requirements. This is the only way that the guarantees laid down by the Directive will be able to have full effect and that effective and complete protection of data subjects (in particular of their privacy) may actually be achieved.
As regards the Directive's territorial scope, the Court observed that Google Spain is a subsidiary of Google Inc. on Spanish territory and, therefore, an 'establishment' within the meaning of the Directive. The Court rejects the argument that the processing of personal data by Google Search is not carried out in the context of the activities of that establishment in Spain. The Court holds, in this regard, that where such data are processed for the purposes of a search engine operated by an undertaking which, although it has its seat in a non-member State, has an establishment in a Member State, the processing is carried out 'in the context of the activities' of that establishment, within the meaning of the Directive, if the establishment is intended to promote and sell, in the Member State in question, advertising space offered by the search engine in order to make the service offered by the engine profitable.
Search Engine Liability
On the issue of the extent of the responsibility of the operator of the search engine, the CJEU has held that the operator is, in 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. The Court makes it clear that 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 in itself on those pages is lawful.
The CJEU points out that processing of personal data carried out by such an operator enables any internet user, when he makes a search on the basis of an individual's name, to obtain, through the list of results, a structured overview of the information relating to that individual on the internet. The Court observes, furthermore, that this information potentially concerns a vast number of aspects of his private life and that, without the search engine, the information could not have been interconnected or could have been connected together only with great difficulty. Internet users may thereby establish a more or less detailed profile of the person searched against. Furthermore, the effect of the interference with the person's rights is heightened on account of the important role played by the internet and search engines in modern society, which render the information contained in such lists of results ubiquitous. In the light of its potential seriousness, the CJEU view is that such interference cannot be justified merely by the economic interest which the operator of the engine has in the data processing.
However, inasmuch as the removal of links from the list of results could, depending on the information at issue, have effects upon the legitimate interest of internet users potentially interested in having access to that information, the CJEU holds that a fair balance should be sought in particular between that interest and the data subject's fundamental rights, in particular the right to privacy and the right to protection of personal data. The Court observes in this regard that, whilst it is true that the data subject's rights also override, as a general rule, that interest of internet users, this balance may however depend, in specific cases, 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, an interest which may vary, in particular, according to the role played by the data subject in public life.
Right to be Forgotten: Data Subject's Right to Request Removal
In response to the question whether the Directive enables the data subject to request that links to web pages be removed from such a list of results on the grounds that he wishes the information appearing on those pages relating to him personally to be 'forgotten' after a certain time, the CJEU held that, if it is found, following a request by the data subject, that the inclusion of those links in the list is, at this point in time, incompatible with the Directive, the links and information in the list of results must be erased. The Court observes that even initially lawful processing of accurate data may, in the course of time, become incompatible with the Directive where, having regard to all the circumstances of the case, the data appear to be inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed. The Court adds that, when appraising such a request made by the data subject in order to oppose the processing carried out by the operator of a search engine, it should in particular be examined whether the data subject has a right that the information in question relating to him personally should, at this point in time, no longer be linked to his name by a list of results that is displayed following a search made on the basis of his name. If that is the case, the links to web pages containing that information must be removed from that list of results, unless there are particular reasons, such as the role played by the data subject in public life, justifying a preponderant interest of the public in having access to the information when such a search is made.
The Court points out that the data subject may address such a request directly to the operator of the search engine (the controller) which must then duly examine its merits. Where the controller does not grant the request, the data subject may bring the matter before the supervisory authority or the judicial authority so that it carries out the necessary checks and orders the controller to take specific measures accordingly.
The full text of the judgment is published on the CURIA web site and is available here.
The Questions and the Formal Ruling
1. With regard to the territorial application of Directive [95/46] and, consequently, of the Spanish data protection legislation:
(a) must it be considered that an "establishment", within the meaning of Article 4(1)(a) of Directive 95/46, exists when any one or more of the following circumstances arise:
– when the undertaking providing the search engine sets up in a Member State an office or subsidiary for the purpose of promoting and selling advertising space on the search engine, which orientates its activity towards the inhabitants of that State,
– when the parent company designates a subsidiary located in that Member State as its representative and controller for two specific filing systems which relate to the data of customers who have contracted for advertising with that undertaking,
– when the office or subsidiary established in a Member State forwards to the parent company, located outside the European Union, requests and requirements addressed to it both by data subjects and by the authorities with responsibility for ensuring observation of the right to data protection, even where such collaboration is engaged in voluntarily?
(b) Must Article 4(1)(c) of Directive 95/46 be interpreted as meaning that there is "use of equipment … situated on the territory of the said Member State":
– when a search engine uses crawlers or robots to locate and index information contained in web pages located on servers in that Member State,
– when it uses a domain name pertaining to a Member State and arranges for searches and the results thereof to be based on the language of that Member State?
(c) Is it possible to regard as a use of equipment, in the terms of Article 4(1)(c) of Directive 95/46, the temporary storage of the information indexed by internet search engines? If the answer to that question is affirmative, can it be considered that that connecting factor is present when the undertaking refuses to disclose the place where it stores those indexes, invoking reasons of competition?
(d) Regardless of the answers to the foregoing questions and particularly in the event that the Court … considers that the connecting factors referred to in Article 4 of [Directive 95/46] are not present:
must Directive 95/46 … be applied, in the light of Article 8 of the [Charter], in the Member State where the centre of gravity of the conflict is located and more effective protection of the rights of … Union citizens is possible?
2. As regards the activity of search engines as providers of content in relation to Directive 95/46 …:
(a) in relation to the activity of [Google Search], as a provider of content, consisting in locating information published or included on the net by third parties, indexing it automatically, storing it temporarily and finally making it available to internet users according to a particular order of preference, when that information contains personal data of third parties: must an activity like the one described be interpreted as falling within the concept of "processing of … data" used in Article 2(b) of Directive 95/46?
(b) If the answer to the foregoing question is affirmative, and once again in relation to an activity like the one described:
must Article 2(d) of Directive 95/46 be interpreted as meaning that the undertaking managing [Google Search] is to be regarded as the "controller" of the personal data contained in the web pages that it indexes?
(c) In the event that the answer to the foregoing question is affirmative:
may the [AEPD], protecting the rights embodied in [Article] 12(b) and [subparagraph (a) of the first paragraph of Article 14] of Directive 95/46, directly impose on [Google Search] a requirement that it withdraw from its indexes an item of information published by third parties, without addressing itself in advance or simultaneously to the owner of the web page on which that information is located?
(d) In the event that the answer to the foregoing question is affirmative:
would the obligation of search engines to protect those rights be excluded when the information that contains the personal data has been lawfully published by third parties and is kept on the web page from which it originates?
3. Regarding the scope of the right of erasure and/or the right to object, in relation to the "derecho al olvido" (the "right to be forgotten"), the following question is asked:
must it be considered that the rights to erasure and blocking of data, provided for in Article 12(b), and the right to object, provided for by [subparagraph (a) of the first paragraph of Article 14] of Directive 95/46, extend to enabling the data subject to address himself to search engines in order to prevent indexing of the information relating to him personally, published on third parties' web pages, invoking his wish that such information should not be known to internet users when he considers that it might be prejudicial to him or he wishes it to be consigned to oblivion, even though the information in question has been lawfully published by third parties?
1. Article 2(b) and (d) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data are to be interpreted as meaning that, first, the activity of a search engine consisting in finding information published or placed on the internet by third parties, indexing it automatically, storing it temporarily and, finally, making it available to internet users according to a particular order of preference must be classified as 'processing of personal data' within the meaning of Article 2(b) when that information contains personal data and, second, the operator of the search engine must be regarded as the 'controller' in respect of that processing, within the meaning of Article 2(d).
2. Article 4(1)(a) of Directive 95/46 is to be interpreted as meaning that processing of personal data is carried out in the context of the activities of an establishment of the controller on the territory of a Member State, within the meaning of that provision, when the operator of a search engine sets up in a Member State a branch or subsidiary which is intended to promote and sell advertising space offered by that engine and which orientates its activity towards the inhabitants of that Member State.
3. Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 are to be interpreted as meaning that, in order to comply with the rights laid down in those provisions and in so far as the conditions laid down by those provisions are in fact satisfied, the operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person's name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful.
4. Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 are to be interpreted as meaning that, when appraising the conditions for the application of those provisions, it should inter alia be examined whether the data subject has a right that the information in question relating to him personally should, at this point in time, no longer be linked to his name by a list of results displayed following a search made on the basis of his name, without it being necessary in order to find such a right that the inclusion of the information in question in that list causes prejudice to the data subject. As the data subject may, in the light of his fundamental rights under Articles 7 and 8 of the Charter, request that the information in question no longer be made available to the general public on account of its inclusion in such a list of results, those rights 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. However, that would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of its inclusion in the list of results, access to the information in question.