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More on the Alfacs v Google case and the “right to be forgotten”

February 29, 2012

[UPDATE: The text of the ruling is available here (RTF)]

On the previous post I briefly covered a recent ruling from a Spanish civil court in a case over the so-called “right to be forgotten”. The case, Alfacs v Google Spain, has received a good deal of attention, both domestic and international. Thus, I think it may be worth saying a little bit more about this case, and contextualizing it within the Spanish case law on this matter.

Some clarifications on the Alfacs v Google Spain

First, the plaintiff is not an individual but a company. Therefore there are no data protection rights involved. That makes this case somewhat special, as almost all cases against Google regarding the right to be forgotten have been brought so far by individuals – and not before a civil court, but before the Spanish Data Protection Authority. In this case, the right claimed to be infringed is the right to honor and reputation, which applies to moral persons as well.

Second, the plaintiff was only suing Google, not the original sources of the pieces of news. Unlike other cases, where the problem is that Google shows links to articles presenting inaccurate stories or defamatory statements, in this case the plaintiff has no problem with the original articles and concedes they are protected by freedom of expression and information. Why then is it suing Google? According to the ruling, the plaintiff considers that Google is liable for choosing to show those particular search results, which harm the plaintiff’s reputation.

Third, the case was dismissed exclusively on account of Google Spain’s lack of standing to be sued. Google Spain, SL–the Spanish subsidiary of Google Inc–was the only defendant named in the lawsuit. However, Google Spain has no involvement at all in the operation of the search engine. This is the first and only issue the ruling deals with. It finds that the entity responsible for the search engine’s operation is the California based corporation Google Inc. The complaint sought moral damages–for the way the results are shown–as well as an injunction to stop showing the results that way. Both petitions can only be directed towards the entity that shapes the results and has the power to stop presenting them–Google Inc.

The question is then which would have been the outcome if the complaint had been filed against Google Inc.? A previous case on a similar matter may shed light into this—Palomo v. Google.

Palomo v. Google Inc.

The relevant case in this field is Palomo v. Google Inc. (ruling of 13 May, 2009, Court of First Instance #19 of Madrid, affirmed by the Madrid Court of Appeals, ruling of 19 February, 2010). In this case, an individual sued Google Inc. on account of the search results pointing to some pieces of news and TV shows which were defamatory in nature. The court found that Google Inc. was shielded from liability by the linking safe harbor set forth in art. 17 of the Spanish Information Society Services Act (LSSI).

According to the ruling, Google Inc. didn’t have actual knowledge of the illegal nature of the linked contents and thus is protected by the safe harbor. Under a strict construction of art. 17, in order for the search engine provider to have actual knowledge, a previous order or ruling declaring the unlawful nature of the linked content must have been issued, and the provider must know about that ruling.

The court of appeals dealt particularly with the issue of whether or not the Spanish LSSI was applicable to the American corporation Google Inc. It responded in the affirmative on the grounds (maybe surprising) that a subsidiary of Google Inc.—Google Spain S.L—has permanent premises in Madrid.

To conclude, if Alfacs decided now to sue Google Inc., and the court followed the steps of the Madrid Court of Appeals, Google Inc. would probably be held not liable, all the more in a case such as Alfacs, where the linked contents were not unlawful in nature.

[UPDATE, 29 Feb 2012, 4:40pm. The owner of the campsite has contacted me. In his view, there is a problem with Google’s algorithm regarding searches about Alfacs Campsite. He notes that if you search for “Accidente Camping Los Alfaques” (that is, Alfaques Campsite Accident, which would be a sign that you are interested in the accident happened there), the terrible four images of carbonized bodies don’t show up, whereas if you search for “Camping Los Alfaques” those images do appear and they do so in the very first result. (I’ve checked this out and yes, this is what happens when searching in Google.es).]

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