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Spain asks the ECJ whether Google must delete links to personal data

March 2, 2012

A Spanish Court has made today a referral to the European Union Court of Justice regarding the so-called right to be forgotten.

The issue is in essence whether individuals have the right to oblige search engines to erase or block search results that point to personal information.

The Court making the referral is the Audiencia Nacional. Some 130 cases are pending before it, in which Google is appealing injunctions issued by the Spanish Data Protection Authority against the search engine.

The specific case considered in the referral relates to an official notice of foreclosure, derived from an outstanding debt with the Social Security, which appeared in La Vanguardia (a Catalan newspaper) in January 19, 1998. The debt was later on paid by the debtor and the foreclosure never took place. However, if you type the name of the concerned person on Google, the first result links to the page of the newspaper’s archive showing that old notice of foreclosure.

The affected person resorted to the Spanish Data Protection Authority (AEPD), asking for an injunction against both the newspaper and the search engine. The AEPD dismissed the claim against the newspaper (who was under the legal obligation of publishing the official notice), but issued an injunction against Google Spain SL and Google Inc. to delete the data from the search engine’s index. Google appealed this injunction to the Audiencia Nacional.

The court is referring nine questions to the ECJ, which can be summarized as follows.

a) Regarding the applicable law, the problem is whether the data protection Directive 95/46/EC and the national law transposing it apply to Google—being Google Inc. a US company. What the national court is asking the EJC in this respect is in essence:

(i) Whether Google Spain SL can be deemed an “establishment” under Article 4(1)(a) of the Directive.

(ii) Whether Google “makes use of equipment, automated or otherwise, situated on the territory of” Spain under Article 4(1)(c) of the Directive.

In this regard, the court asks if this can result from the fact that Google uses its crawlers to gather information from websites hosted in Spain, or from the fact that it uses a Spanish country code TLD (Google.es) and directs Spanish users to searches and results relevant for them in terms of language or location.

Moreover, the court asks whether that “use of equipement” can be inferred from the fact that Google stores the indexed information in servers whose location is kept undisclosed.

(iii) Whether, if the previous questions are to be answered in the negative, still the Directive should apply taking into account that Data Protection is a fundamental right according to Article 8 of the Charter of Fundamental Rights of the European Union.

b) As to the search engine’s activity, the court asks in essence:

(i) Whether the functions of a search engine fall under the notion of “processing of personal data” as defined in Article 2(b) of the Directive 95/46/EC.

(ii) If the previous question is to be answered in the affirmative, the court asks whether the company running the search engine can be deemed to be the “data controller” according to Article 2(d) of the Directive, with all the obligations the Directive imposes on such controllers.

(iii) If the previous question is to be answered in the affirmative, the court asks whether the National Data Protection Authority, enforcing the rights laid down in Articles 12(b) and 14(a) of the Directive, may directly require the search engine to remove the data form its index, without previously or simultaneously requiring this removal to the origin website where the information is published. And whether search engines would be exempted from the obligation to remove the data when the publication of that information was licit is maintained in the origin website (as it was in this case).

c) Finally, regarding specifically the so-called “right to be forgotten”, the court asks whether the rights to the erasure or blocking of data [art. 12(b) Directive 95/46/EC], and to object to the processing of data [art. 14(a) Directive 95/46/EC] allow the data subject to prevent search engines from indexing personal information of her, on the basis that she doesn’t want this information to be known by Internet users because she thinks it may harm her or because she want it to be forgotten, even if that information was lawfully published by third parties.

The referral is certainly timely and interesting, not just for Spain but for all Member States.

Read more: The court ruling making the referral (PDF) (in Spanish)

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