A recent decision of the European Court of Justice overrides the
interests of internet users in protecting the privacy rights of
individuals whose personal information is retrievable online.
On May 5, 2010, Mr. Costeja Gonzalez filed a complaint with the
Spanish Data Protection Agency (SDPA) against La Vanguardgua
Ediciones SL ("Vanguardgua"), a Spanish
daily newspaper publisher, and Google Spain and Google Inc. Mr.
Gonzalez complained that when internet users searched his name,
they retrieved links to two Vanguardgua announcements from 1998
regarding a real-estate auction connected to recovery of social
security debts owed by Mr. Gonzalez.
Mr. Gonzalez requested that: (i) Vanguardgua remove or alter the
relevant pages on their website so that his personal information
would not be publicly available, and (ii) Google cease to include
his personal data in search results. Mr. Gonzalez argued that the
articles were no longer relevant because the situation had been
On July 30, 2010, the SDPA rejected his claim against
Vanguardgua finding that Vanguardgua had legally published the
articles in 1998. However, the SDPA upheld Mr. Gonzalez's claim
that his personal data no longer be included in Google search
results. The decision was based on the SDPA's authority to
require search engine operators to remove or exclude data that
compromises the fundamental right to data protection and the
dignity of persons. The SDPA considered that the obligation on
search engine operators was separate from any obligation of the
initial publisher. Thus, the requirement to remove or exclude data
could be imposed on search engine operators even when the
information legally remained on a website.
Following an appeal by Google to the National High Court of
Spain, the question of what obligations are owed by search engine
operators to protect personal data of persons who do not want their
personal information to be located, indexed and made available to
internet users, was referred to the European Court of Justice (ECJ)
– the highest court in the European Union in matters of
European Union law.
The Right to be Forgotten
The ECJ decided that a person may make a request for information
removal directly to the search engine operator. The search engine
operator must assess the merits of the request and accept or deny
the request. If the search engine operator denies a request, the
requesting party can bring the matter before a supervisory or
judicial authority for determination.
The ECJ analyzed the need to access data for legitimate
interests in the face of a person's right to privacy – a
European Charter protected fundamental right and freedom. In its
analysis, the ECJ stated that a fair balance should be sought in
determining the legitimate interests of an internet user and a
person's fundamental rights. As a general rule, the ECJ
specified that the interests of the person whose data is in
question will override the interests of an internet user. However,
the determination ultimately depends on: (i) the nature of the
information in question, (ii) how personal or sensitive it is to a
person's private life, and (iii) the interests of the public in
having the information, in particular, the person's role in
public life. It may therefore be more difficult for politicians to
have personal information relevant to their profession removed from
The Right to be Forgotten in Canada
While Canadians' rights to privacy are not enshrined in our
Charter, as is the situation in Europe, we enjoy some protections
under our federal and provincial privacy laws.
As concerns mount that the right to be forgotten will open the
door to large-scale self-censorship in Europe, pitting freedom of
speech advocates against the defenders of privacy, the status quo
in Canada may not last long. Google is currently building an
infrastructure that will allow internet users to request the
removal of personal information relating to them from search
results. A test case in Canada is likely on the horizon.
The content of this article does not constitute legal advice
and should not be relied on in that way. Specific advice should be
sought about your specific circumstances.
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