European Court Opinion Favors Google in Privacy Battle

In a victory for Google, the European Union’s highest court on Tuesday was advised to strike down a Spanish regulator’s demand that the search engine grant citizens a broad digital “right to be forgotten,” including the ability to delete previous arrests and other negative publicity from Google’s online search results.
An expert opinion requested by the European Court of Justice, which is based in Luxembourg, recommended that Google not be forced to expunge all links to a 15-year-old legal notice published in a Spanish newspaper documenting a failure to pay back taxes.
The recommendation of the court’s advocate general, Niilo Jääskinen, who acted as an official fact-finder for the panel, may also play a role in negotiations to update the European Union’s 1995 data protection law, which was adopted at the dawn of the broadband era. A proposal before the European Parliament and the Council of Ministers, the European Union’s upper chamber, would give residents of the 27-nation bloc broader control over the display of personal information, including a digital “right to be forgotten.”
Mr. Jääskinen concluded that although Spanish data protection law applied to Google, which operates a local advertising business targeting Spanish citizens, Google merely collated existing information on the Web and was not a “controller” of information, and therefore not the legal entity that must comply with the law.
In addition, Mr. Jääskinen said Europe’s 1995 data protection law guaranteed a right to be forgotten only in cases where information was incomplete or inaccurate, which was not at issue in the Spanish case.
Wishing to eliminate embarrassing information is not reason enough to redact public records via Google, the court-appointed expert concluded.
“The Advocate General considers that a subjective preference alone does not amount to a compelling legitimate ground,” the court said in a statement. The 1995 law, the court statement said, “does not entitle a person to restrict or terminate dissemination of personal data that he considers to be harmful or contrary to his interests.
Bill Echikson, the head of free expression for Google in Europe, the Middle East and Africa, welcomed the advocate general’s recommendation, which is followed by the full court tribunal in three-quarters of cases. The Court of Justice is expected to make its official ruling, which will guide a Spanish high court considering the case, later this year.
“This is a good opinion for free expression,” Mr. Echikson said. “We’re glad to see it supports our long-held view that requiring search engines to suppress ‘legitimate and legal information’ would amount to censorship.”
Javier Aparicio, a privacy lawyer with the Madrid firm of Cuatrecasas Goncalves Pereira, said the court’s recommendation would compel the Spanish data regulator, the Agencia Española de Protección de Datos, to end its practice of attempting to force Google to redact its own search results to suit the desires of Spanish citizens. The regulator did not comment after the court’s recommendation.
The lead parliamentary committee in Brussels considering the bill to update the 1995 European data protection law has delayed until after the summer a vote on more than 4,000 amendments. The proposal would give European Union citizens the right to take their personal data, including photos and texts, with them, so to speak, when they switched to new social networks, requiring the former networks to delete their old data upon request.
“The Spanish case attempted to give citizens the right to delete embarrassing information from search engines,” Mr. Aparicio said in an interview. “The European legislation focuses on social networks. I don’t think the one will affect the other.'’
Spain had been particularly aggressive in enforcing portions of the 1995 law’s prohibition against storing data on criminal and administrative infractions on individuals.
Over the past five years, the Spanish data protection regulator, the Agencia Española de Protección de Datos, has filed 180 requests with Google on behalf of Spanish citizens asking for the deletion of links to criminal convictions, administrative sanctions, involvement in child custody disputes and arrests where charges were later dropped.
Most involved publication of past offenses. In 2008, a Spanish prison guard asked Google to expunge a link to a disciplinary sanction against him in a government journal, arguing that publication could make him a target of the Basque terror group ETA. A man convicted of damaging a public monument, who paid a fine and under Spanish law had the misdemeanor deleted from his criminal record, asked Google in 2009 to eliminate links to his original arrest.
Spanish law gives individuals a broad right to limit the “indiscriminate” dissemination of personal data, even when the original publication was legitimate, if the information “no longer has relevance or public interest,” according to a statement by the regulator, which is based in Madrid.
Google has challenged the requests in Spanish court, arguing that it provides digital links only to information already in the Spanish public domain. In addition, Google has said that the 1995 European law’s exemption of “platforms” included Web services like the Google search engine, which is the market leader in Spain.
The test case before the European judicial panel involved a Spaniard, who was not identified by the court, who wanted Google to eliminate all links to a 1998 legal notice in a Barcelona newspaper, La Vanguardia, with details of a government auction of his property for failure to pay back taxes. One of Spain’s top courts in Madrid, the Audienca Nacional, asked the European court last year for guidance on how to apply the 1995 law.
 
By Kevin J. O'Brien
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