14 May 2014

European Court of Justice rules Google is a data controller and confirms the “right to be forgotten”

In its decision of today, May 13, 2014 in the case nr. C131/12, the ECJ first rules that the activity of a search engine is a ‘processing of personal data’ when the information indexed and made available as search result contains personal data. The operator of the search engine must be regarded as the ‘controller’ of the data and is therefore subject to all obligations foreseen in the Directive 95/46.

The Court also rules that the Directive 95/46 is applicable as soon as the operator of a search engine sets up in a Member State a branch or subsidiary which is intended to promote and sell advertising space offered by that engine and which orientates its activity towards the inhabitants of that Member State. In other words: Directive 95/46 is also applicable to most of the search engines, even if they are based outside the EU.

In accordance with the rules contained in the Directive 95/46, any person may ask to the search engine operator to remove from the list of results (displayed following a search made on the basis of the person’s name) links to web pages, published by third parties and containing information relating to that person.

In order to obtain such removal, it is not necessary that the information would be erased beforehand or simultaneously from the web pages indexed. If the information contained in the page indexed in the search result is incorrect or incomplete, it is clear that the search engine will have to remove the page from the results.

But even in other cases, a balance needs to be made between the interests of the person to obtain the removal and the right of the search engine to present complete and accurate search results.

In that regard, the court rules that, in general, the right to privacy contained in article 7 of the Charter of Fundamental Rights of the European Union overrides the economic interest of the operator of the search engine, and also overrides the interest of the general public in having access to information upon a search relating to the data subject’s name. This is the case even if the inclusion of the information does not cause prejudice to the person. However, the Court adds that the person has no right of removal, if it appears, for particular reasons, such as the role played by the person in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of its inclusion in the list of results, access to the information in question.

No doubt that this balance to be made will lead to a lot of discussion…

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