No “Right to Be Forgotten” Says Advocate General of CJEU

July 18, 2013

On June 25, 2013, the advocate general of the Court of Justice of EU (CJEU) rendered his opinion in the “Spanish Google case.” This case remains one of the most important cases on personal data protection and the Internet since the Lindqvist (2003) and Satakunnan Markkinaporssi & Satamedia (2008) cases. The Spanish Google case will have an important impact on the actual EU legal framework but will also impact the debates on the new draft regulation. Among other items, the draft regulation proposes to introduce a “right to be forgotten.”

In 1998, a Spanish newspaper published in its printed edition announcements concerning information related to insolvency of a Spanish citizen. These publications were effected by order of the Spanish Ministry of Labour and Social Affairs. Following a complaint from the Spanish citizen, the Spanish Data Protection Authority (AEPD) ordered Google Spain and Google Inc. to remove the search results relating these publications. Google Spain and Google Inc. appealed the decision and the appeals court (Audiencia Nacional) referred the case to the CJEU with three groups of questions relating to (1) the territorial scope of the directive, (2) Google’s qualification as data controller and (3) the alleged “right to be forgotten.”

The advocate general replied as follows:

  1. Concerning the territorial competence and search engines: the notion of establishment must be construed according to the economic model (the presence of an undertaking in a Member State that promotes and sells advertising which orientates its activity towards inhabitants of that state);
  2. Concerning the notion of controller applied to search engines: search engines are in principle not controllers (with some exceptions);
  3. Concerning the “right to be forgotten”: this right does not exist under the present EU Directive and it is not recommended to introduce it in the new EU draft regulation. The advocate general applies a very wise balance with the freedom of expression and underlines the specific characteristics of the “notice and take down procedures” that appear in the e-commerce directive 2000/31 to confirm the fact that it is not recommended to introduce this right in the new regulation.

The final decision of the CJEU is awaited before the end of the year and probably at a time when the draft regulation will still be under discussion.