Privacy Law

Right to be forgotten: should Google delete personal data?

The European Court of Justice’s Advocate General published an opinion 25.06.2013 in which he doubted whether there is a “right to be forgotten” by Google.

No right to be forgotten © ferkelraggae-Fotolia

No right to be forgotten © ferkelraggae-Fotolia

Right to be forgotten

Whether an individual has a right to be forgotten in the internet is currently the subject of dispute between Google and Spanish data protection authorities.

Acting on behalf of a Spanish citizen, the data protection authorities demanded that Google remove the citizen’s personal data, together with an article linked to the person, from its search index.

The article appeared on the internet many years ago and was based on information legally obtained. The data concerned the auctioning of property to pay off debts in the context of insolvency proceedings.

The individual argued that the proceedings were no longer relevant, and that he did not want to be associated with them any longer.

European data protection directive applies to Google

The Advocate General reached the opinion that the European Union’s Data Protection Directive in its transposed form does apply to Google. As a result the laws of Spain apply in this case.

In deciding the directive is applicable in this case, the Advocate General rejected the argument that data processing is undertaken purely by US parent company. The Advocate General took the view that the Spanish subsidiary plays an important role in the processing of personal data due to its advertising activities. Through marketing and the selling of advertising space on the search engine, there is clear scope for the subsidiary to process personal data.

Google not responsible for content of linked websites

Turning to the question of responsibility for the content of third party websites listed in Google’s index, the Advocate General reached the conclusion that the search engine cannot be held responsible, as the search engine’s index is created automatically.

The Advocate General justified his view by pointing out that Google’s search contains no capability of controlling personal data on third party websites. Google only has the ability to keep the search engine up-to-date and there were no objections in this regard. Only in cases of illegal or offensive content can Google, which is acting as an intermediary, be forced to take action.

In the Advocate General’s opinion, there is no general right to be forgotten on grounds of information published legally by third parties. If there were, this right would amount to a severe infringement of the right to freedom of opinion and information.

The ECJ’s final judgment is still outstanding.

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Christian Solmecke is a partner at the law firm WILDE BEUGER SOLMECKE. He is the author of numerous legal publications in the area of internet and IT law. He is also an associate lecturer for social media law at the Cologne University of Applied Sciences.

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