Gone, but Not Forgotten: How the European Union Court of Justice Misremembered the Fundamental Purpose of Search Engines

The European Union Court of Justice (ECJ) ruled on May 13, 2014 that Google must purge links to personal data appearing on web pages published by third parties if the person who is the subject of that data objects that it is “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which [the data] were processed and in light of the time that has elapsed.” Google and other industry voices have already identified numerous concerns with the Court’s ruling, notably the unknown costs and potential disputes over relevancy and staleness of data that could arise as search engines seek to comply with the ruling.

The case, Google Spain SL, Google Inc. v. Agencia Española de Protección de Datos, Mario Costeja González, stems from a Spanish man’s fight to force Google to cease prominently displaying links to news articles about a 1998 auction of his home to settle his debts. Spain’s high court requested that the ECJ clarify European Union Directive 95/46/EC. The Directive provides for the protection of individuals with regard to the processing of personal data and the free movement of that data. Advocate General Jääskinen delivered a non-binding, preliminary opinion on June 25, 2013. It noted that Google should not be subject to the Directive as a “controller” of personal data in light of the reality of how search engines crawl the web to collect caches of web pages and then analyze and index the pages for search by users.

The ECJ disagreed with the Advocate General. It held that Google’s activities were subject to the Directive and that, when a data owner objects to stale material, Google must omit the links when the material offends the rights afforded by the Directive. However, the ECJ did not promulgate the balance that should be struck between an individual’s derecho al olvido (“right to be forgotten”) and the public’s right to know. Instead, the national courts will apply ECJ’s analysis of Directive 95/46/EC in determining when material is incompatible with the Directive’s protections.

Since the ruling, new requests for takedowns have come pouring in to search engines and originating publishers alike. The so-called right to be forgotten, which seeks to address the problem with the Internet’s long memory, has its roots in French law, which grants le droit à l’oubli (the “right of oblivion”) to formerly incarcerated individuals, allowing them to object to publication of the facts of imprisonment or conviction. As applied by ECJ, however, the objector can now force dispersal of any offending information gathered by Google, as the links must be purged even if the underlying page is not erased, or was published lawfully. This could place a heavy burden on search engines to respond to individual requests while neutering the fundamental purpose of search engines – neutrally aggregating information linked to the Internet to create efficient searches. Accordingly, the battle has moved to the national courts to find a balance that protects free speech while complying with the European Union’s strict right to privacy.

Gibbons will continue to monitor developments on this topic.

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