In February of 2013, the Agenica Española de Protección de Datos (AEPD) and Mr. Costeja González of Spain, entered into proceedings against Google Spain SL and Google Inc. These proceedings followed Mr. González’s original complaint to the AEPD in March of 2010, regarding articles published online by La Vanguardia Ediciones SL. The January and March 1998 articles announced a real-estate auction in Mr. González’s name, which had followed social security debt proceedings.
This past May, the European Court of Justice made a decision based on AEPD and Mr. González’s request for a preliminary ruling under Article 267 TFEU from the Audiencia Nacional. The court ruled that Article 2(b) and (d) of Directive 95/46/EC will now interpret the finding, indexing, temporary storing and making available of information via search engine as ‘processing of personal data.’ The decision also included that Article 4(1)(a) of the Directive shall now define a search engine that sets up in a Member State intending to promote and sell advertising, as taking part in the processing of personal data. Article 12(b) and subparagraph (a) of Article 14 of the Directive are now to be interpreted as obligating the operator of a search engine to remove the information returned when an individual’s name is searched if the provisions of those sections are satisfied. Under those same articles, it will now be necessary for the operator of a search engine to remove the personal data information if the search results yield information that the data subject feels is prejudicial. To justify this, the court claims that an individual’s fundamental rights under Articles 7 and 8 of the Charter, override the general public’s interest and the search engine operator’s economic interest in the searched material.
The decision, though terminologically lengthy, basically poses the issue of one’s right to be forgotten versus one’s right to know. Search engine operators will be required to set up a website, or other online access point, for individuals to request to have personal data removed, which may prove to be economically and socially stressful. Google has already begun using such a system, but other search engines are now subject to the ruling, as well. When asked for comment the Microsoft Corporation, who own and operate Bing, declined to answer. Yahoo Inc. is also currently researching how this ruling will impact their business and made a statement saying they support, “an open and free Internet; not one shaded by censorship.”
Within the first four days of Google having its site up and running they received nearly 41,000 requests for removal. To deal with numbers as large as this, search engines will have to employ a “supervisory authority” team to respond, analyse and sometimes act on the growing surplus of requests. This team will cost them a great deal of money and may even need to consist of the Commissioners of Data Protection. While business margins will already be decreasing due to this new sector of the company, there’s a strong possibility that they may also lose, or fail to bring in, money from advertisers who feel their search engine no longer has enough Internet traffic. But what most importantly affects this issue, as a whole, is the fact that the information will only be removed from searches done within the European Union. So, if the same search is done in the United States, the data will still appear.
Culturally, internet users will also take a hit through the loss of access to important information. Information that could be beneficial to society and communities, such as a patient’s review of a doctor’s unethical practices, may be removed because the doctor finds it to be prejudice against him. Other consequences may consist of one’s freedom of expression and right to conduct business being infringed upon or fraudulent requests being made by those who are not the data subject, despite having security checks in place.
The provisions that have resulted from this ruling make way for similar judgments to be made, judgments that could raise some interesting questions. In terms of a convict wanting his criminal record removed from the Internet, is a search engine lawfully allowed to do this? Do they have the authority? A sex offender might request that their information be removed. Does this put society in danger? Questions such as these will need to be ultimately answered by the court. The immersion into the world of the Internet and technology is just beginning for judicial systems and only time will tell how this intervention will affect the way search engines conduct themselves and how society views the Internet, literally.
© 2014 Chambers of Lawrence Power, 4 King’s Bench Walk, Temple, London, EC4Y 7DL. Tel: 020 7822 8822. www.4kbw.net