Recently the Court of Justice of the European Union (ECJ) held that Google must ensure “Right To Be Forgotten” to its users. This is a significant and landmark judgment against Google that would have world wide ramifications.
Before we proceed further with the judgment, it would be pertinent to analyse the background documents in this regard. These documents are as follows:
(1) Directive 95-46-EC Of The European Parliament And Of The Council On The Protection Of Individuals With Regard To The Processing Of Personal Data And On The Free Movement Of Such Data (PDF) (Directive 95/46/EC)
(3) Reference For A Preliminary Ruling From The Audiencia Nacional (Spain) Lodged On 9 March 2012 — Google Spain, S.L., Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González (PDF)
(4) Judgment Of The Court (Grand Chamber) (PDF)
(5) Google Spain SL, Google Inc. v Agencia Española de Protección de Datos Judgment in Case C-13112 (PDF) (Press Release)
The ECJ held that Article 2(b) and (d) of 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 are to be interpreted as meaning that, first, the activity of a search engine consisting in finding information published or placed on the internet by third parties, indexing it automatically, storing it temporarily and, finally, making it available to internet users according to a particular order of preference must be classified as “processing of personal data” within the meaning of Article 2(b) when that information contains personal data and, second, the operator of the search engine must be regarded as the “controller” in respect of that processing, within the meaning of Article 2(d).
Article 4(1)(a) of Directive 95/46 is to be interpreted as meaning that processing of personal data is carried out in the context of the activities of an establishment of the controller on the territory of a Member State, within the meaning of that provision, when 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.
Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 are to be interpreted as meaning that, in order to comply with the rights laid down in those provisions and in so far as the conditions laid down by those provisions are in fact satisfied, the operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful.
Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 are to be interpreted as meaning that, when appraising the conditions for the application of those provisions, it should inter alia be examined whether the data subject has a right that the information in question relating to him personally should, at this point in time, no longer be linked to his name by a list of results displayed following a search made on the basis of his name, without it being necessary in order to find such a right that the inclusion of the information in question in that list causes prejudice to the data subject. As the data subject may, in the light of his fundamental rights under Articles 7 and 8 of the Charter, request that the information in question no longer be made available to the general public on account of its inclusion in such a list of results, those rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in having access to that information upon a search relating to the data subject’s name.
However, that would not be the case if it appeared, for particular reasons, such as the role played by the data subject 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.