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Spain: The Right to Be Forgotten Does Not Apply to Blogger

March 5, 2015

Note: Cross posted to the Center for Internet and Society at Stanford Law School

In a recently reported ruling, the Spanish National High Court held that Google is not responsible for the processing of personal data on blog hosted on Google’s owned Blogger, and therefore, that the so called “right to be forgotten” established by the Court of Justice of the European Union (CJEU) in the Google Spain case does not extend to a blogging platform.

The ruling reverses a decision issued by the Spanish Data Protection Authority (DPA) which had ordered Google to remove personally identifiable information from a blog hosted on Blogger. The claimant was a Spanish citizen who found that when typing his name on Google Search, the results included a link to a blog with information about a crime he had committed many years ago. While the official criminal records had already been cancelled, the information was thus still findable on the internet.

On the one hand, the DPA ordered Google to remove the information from its search engine. This was upheld by the National High Court, albeit ordering more precisely that Google remove the link from the search results – thus applying the criteria set out by the CJEU in Google Spain.

On the other hand, the DPA considered Google, as the owner of the blogging platform, to be the “controller” of the processing. Interestingly, the DPA found that while Google was not liable for the content of the blog, as it was shielded by the hosting safe harbor, the DPA has the power to order Google to remove the information from the blog.

The National High Court reversed that and held that the responsible for the processing is not Google but the blog owner. It further held that the DPA cannot order Google to remove the content within a procedure for the protection of the data subject’s right to erasure and to object.

Arguably, under the rationale that the platform is not the controller of the processing, other user generated content sites such as YouTube or social networking sites might also fall outside the scope of the right to be forgotten.

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