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No more right-to-be-forgotten for Mr. Costeja, says Spanish Data Protection Authority

October 11, 2015

[Cross posted to the Center for Internet and Society at Stanford Law School]

The man who won the right-to-be-forgotten case in the Court of Justice of the European Union (CJEU) has now been denied the right to suppress links to comments about that case by the Spanish Data Protection Authority (DPA). Given the relevance of the CJEU’s ruling, comments discussing the case and the facts behind it must be considered of public interest, according to the DPA’s decision.

Since the CJEU handed down its landmark ruling in May 2014 – and even before that – the circumstances of the case were widely publicized in the media. The irony was immediately apparent. While the claimant sought to have some old unpleasant information forgotten – and he actually succeeded to have the links to it delisted – all the details ended up being brought to the public eye. He even gave numerous interviews, sometimes being depicted in the media as the man who won the battle against Google.

Of course, some negative comments were also published. Eventually, Mr. Costeja requested Google to delist one of those, which Google rejected. He then addressed himself to the Spanish DPA, which in its recent decision dismisses the claim.

In the case before the CJEU, Mr. Costeja had complained that Google showed links to obsolete information available in a newspaper’s digital archive – a 1998 notice of real estate auction following attachment procedures for the recovery of Social Security debts. The CJEU found that individuals may request the delisting of links showing up in searches for their name pointing to information which is “inadequate, irrelevant, no longer relevant or excessive”. Nonetheless, the CJEU noted that such a right does not apply where there is a preponderant right of the public in accessing the information – for instance when the claimant has a role in public life.

Now the DPA finds that there is indeed a preponderant interest of the public in the comments about the famous case that gave rise to the CJEU judgment of May 13, 2014 – and expressly reminds that the claimant itself went public about the details.

While the decision does not mention the particular piece of information the claimant was complaining of, it may in all probability be a blog post titled “The unforgettable story of the seizure to the defaulter Mario Costeja González that happened in 1998”, available both in English and Spanish, which is currently the first result in Google.es in a search for the claimant’s name. In his claim before the DPA, Mr. Costeja complained that the content was also defamatory. However, the DPA answers that claims for defamation must be brought before the civil courts, not before the DPA.

All in all – as it was easy to anticipate from the beginning – this seminal right-to-be-forgotten case appears to have ended up in a big Streisand effect.

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