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'Right to be forgotten' is overrated, huffs search giant

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Google has called on the EU's highest court to uphold its right to display links to published "valid legal material" in the face of calls from Spain's data protection authority to remove links on the grounds of privacy.

The Court of Justice of the European Union (CJEU) is due today to stage a hearing on a case in which it has been asked to rule whether it is lawful for search engines to be forced to delete information they do not create but display in search results.

According to a statement from the CJEU, the case before it was triggered when individuals complained to Spain's data protection authority (AEPD) about results that appeared in Google's search rankings. The AEPD ordered Google to "take the necessary measures to withdraw the data from their index and to render future access to the information impossible via their search engine" but Google and Google Spain both appealed against that order to the Spanish courts.

The Audiencia Nacional in Spain has, though, asked the CJEU to provide a ruling on aspects of EU data protection laws in order to enable it to make a judgment in the case. It has been asked fundamentally to determine whether Google can be considered a 'data controller' that is required to comply with the data protection regime.

Google has argued that as its search engine business is based in the US the EU's Data Protection Directive should not be applied to it. It has said that the fact it has a Spanish subsidiary is irrelevant because that business is only responsible for selling advertising on Google and has no role in the operation of the search engine itself," according to the CJEU's statement.

However, the AEPD has argued that Google is subject to the Directive's rules, should be considered to be a 'data controller' and should be required to "remove [personal data] when that data has been lawfully published on another website and is kept on the page from which it originates".

Under current EU data protection laws organisations are generally allowed only to collect and store personal data that is strictly necessary and proportionate for its purposes. Individuals have the "right to obtain, at his request ... the rectification, erasure or blocking of data which are incomplete, inaccurate or stored in a way incompatible with the legitimate purposes pursued" by organisations that hold their personal data.

This 'right to be forgotten' would be expanded upon under proposed new EU data protection laws drafted by the European Commission. Under the regime a specific qualified 'right to be forgotten' would be particularly specified and would give individuals a general right to force organisations to delete personal data stored about them "without delay". Organisations that make the data public would be liable for the data published by third parties and would be required to "take all reasonable steps, including technical measures" to inform them to delete the information.

However, organisations would be able to oppose the deletion of information if they could show they have a right to publish the data under the fundamental principle of freedom of expression or if it is in the public interest for the data to remain in existence.

In a blog about the CJEU hearing, Google called on the court to give greater weight to its freedom of expression rights than to the privacy rights of individuals. It said that the particular case referred to the CJEU from the Audiencia Nacional is one of approximately 180 similar cases currently before the Spanish courts.

"We were asked to remove links from our search results that point to a legal notice published in a newspaper," William Echikson, Google's head of free expression in European and the Middle East said of the case referred to the CJEU. "The notice, announcing houses being auctioned off as part of a legal proceeding, is required under Spanish law and includes factually correct information that is still publicly available on the newspaper’s website."

"There are clear societal reasons why this kind of information should be publicly available. People shouldn't be prevented from learning that a politician was convicted of taking a bribe, or that a doctor was convicted of malpractice. The substantive question before the Court today is whether search engines should be obliged to remove links to valid legal material that still exists online. We believe the answer to that question is 'no'," he said.

"Search engines point to information that is published online - and in this case to information that had to be made public, by law. In our view, only the original publisher can take the the decision to remove such content. Once removed from the source webpage, content will disappear from a search engine's index. Of course, there will also be times when information is published online that is subsequently found by a court to be incorrect, defamatory or otherwise illegal. Such content can be removed from the source website and from search engines. But search engines should not be subject to censorship of legitimate content for the sake of privacy - or for any other reason," Echikson added.

Copyright © 2013, Out-Law.com

Out-Law.com is part of international law firm Pinsent Masons.

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