Search engines and the right
to be forgotten

The European Court of Justice acknowledged the right to
be forgotten
. But is it really that easy to
implement this principle?

Google has become the starting point in the search of information on anyone.

Most of us have the reflex to google anyone who crosses our paths. Google is a convenient engine to fulfill the curiosity on someone’s background.

However, the information which comes to light trough Google is not always innocent and Google ensures that it is not forgotten.

The jurisprudence already acknowledged the right to be forgotten, but for the first time, this right can be imposed to the online search engine, which displays the information in its results, instead of to the author or publisher of the information.


1. Does one has the right to be forgotten?

The European Court of Justice has by its judgment of 13 May 2014 held that every individual can exercise its right to be forgotten against Google.

Anyone can demand from Google that his name will not longer be linked to the results of an online search.

The facts, which preceded this judgment, concerned the story of Mr Gonzalez, who’s property has been sold 16 years ago trough a public auction. This event was reported in a Spanish magazine and when the name of Mr Gonzalez was googled, the article in question appeared in the search results.

Mr Gonzalez considered this as a violation of his privacy and has started proceedings in order to erase his name from the Google search results. The Spanish Audiencia Nacional has asked different prejudicial questions to the European Court of Justice concerning the interpretation of the Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.

The Court answered that the activities of Google, whereby the personal information published online, is gathered, stored and organized on the servers and dispersed in the form of a list of results, can be qualified as the processing of personal data in the sense of the Directive.

The Court continued that the operator of a search engine must comply with the requirements of the Directive, since the activities of the search engine could affect the basic rights of the data subject.

Given that the Court ordered that the Directive 95/46 applies to the activities of Google, the individual can invoke articles 12 and 14 of the Directive in order to oppose to the processing of its personal data.

2. Can the individual ask that his personal data will be erased, even if the publication on itself is justified?

Google argued that the individual has to direct his claim to the author or the publisher of the webpage in question.

It must be noted that personal data can be processed for historical, statistical or scientific purposes. However, the personal data cannot be stored longer for longer periods than the realization of its purpose. Furthermore, the Directive provides a specific exception for the processing of personal data for journalistic purposes.

The Court held that, although the processing of the personal data was justified at the time, the inclusion of the personal data in the list of results on Google is no longer justified if it does not longer fit the purpose for which it was processed at the beginning.

3.  The consequences of the judgment

The European Court of Justice balances the rights of the individual against the rights of the public. The Court held that interference in the rights of the individual is allowed, if it can be justified for particular reasons, such as the role played by the individual in public life. In this case, the general public has an interest in having access tot the information in question.

The problem however, lies in the fact that such a balance is hard to make. After all, when do certain events loose their importance or how much time must pass in order to be able to exercise the right to be forgotten?

At the moment, a demand to erase certain information must be made with Google, and Google will decide whether the conditions in this regard are fulfilled, without that these conditions being clear. Google will be the first judge to decide whether the information concerning an individual is still relevant or not. Given the lack of criteria, it will not be a simple mission. It remains uncertain if Google will be precautious and judge in favour of the individual or if it will rather support the right on access and dissemination of information.

Furthermore, the question remains whether this judgment will have any effect.

In Europe, internet users go trough the adapted Google pages, such as Google.be, Google.fr, Google.es, etc. As long as the European Internet user can surf to Google.com, which is located on American serves, he will probably still have access to the information "forgotten" in Europe.

It goes without saying that the discussion does not end here and that the right to be forgotten will be the object of future jurisprudence and doctrine.

07 July 2014

Lynn Pype - lynn.pype@peeters-law.be
Griet Verfaillie - griet.verfaillie@peeters-law.be

For more information on this subject, please contact Griet Verfaillie.

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