Europeans gain the right to be forgotten

A Spanish court ruling against Google could become a slippery slope towards online censorship. (Photo: AFP)

A Spanish court ruling against Google could become a slippery slope towards online censorship. (Photo: AFP)

Google is removing the results of searches of some people’s names in line with a May ruling by the Court of Justice of the European Union, which has protected people’s “right to be forgotten”.

The case concerned a Spanish national, Costeja Gonzalez, who complained to Google about online newspaper reports it had indexed that related to debt recovery proceedings against him.

When Gonzalez’s name was entered into Google, search results brought up a newspaper article (on the website of La Vanguardia, a mass circulation newspaper in Catalonia) about the auctioning of his repossessed home dating from 1998. 

Gonzalez argued that his house had been auctioned to recover his social security debt, which was resolved and should no longer be linked to him whenever a search was conducted on Google. 

The Spanish data protection regulator dismissed the complaint against the newspaper, but upheld the complaint against Google. The case was referred to the Spanish High Court, which referred various questions to the European Court of Justice for a ruling. 

The European judges ruled that under existing EU data protection law, Google had to erase links to two pages on La Vanguardia’s website. The judges said that even accurate data that had been lawfully published could “in the course of time become incompatible with the directive”.

Avani Singh and Dario Milo of Webber Wentzel said while the ruling has no binding effect on South Africa, “it may be of persuasive authority if a South African were to rely on the similar provisions in the provisions in our Protection of Personal Information Act, when it comes into force, to try and achieve the same result for search engines or even Internet publishers”. 

They said it was significant that the EU court found it had jurisdiction to rule on the matter — even though Google is based outside Europe — on the basis that Google Spain was an establishment of Google Inc. 

Google has said it has updated its infrastructure to begin removing results following the posting on May 30 of a service that allowed European citizens to request that certain links be removed from searches on their name. 

Each request has to be individually considered by Google staff, because the court stipulated that the information on the search engine has to be “inadequate, irrelevant, or no longer relevant”, suggesting that retaining the information could not be justified because the purpose for which it was collected or the amount of time lapsed since its collection made it no longer relevant. 

EU Justice Commissioner Viviane Reading welcomed the decision, saying it was a “clear victory for the protection of personal data of Europeans”, but others worry that, if misused, the ruling could become a slippery slope towards online censorship. 

Some believe it imposes onerous obligations on Google as well as other search engines and internet publishers to monitor all content, including that on third party sites. 

Phil Lee of Field Fisher Waterhouse, a privacy and information law group, said in a comment that this ruling “was one of the most significant — if not the most significant — data protection ruling in the EU to date … few expected that search engines could be required to remove search results linking to material posted lawfully on a third party site, but that is precisely what the ECJ has ruled”.

“Put another way, search engines will need to act, not just as gateways to information on the web, but also — in some circumstances — as censors preventing access to information based on observations received.
This raises some complex challenges in terms of balancing right to privacy against right to free speech.”

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