Right to be forgotten no justification for internet censorship, Google warns

World's most popular search engine defends decision not to remove links to personal information despite privacy concerns

Making search engines responsible for removing links to information held on publishers’ websites would breach the principle of freedom of expression, Google has told EU judges.

Google’s warning came in the course of a hearing in a test case about the right to be forgotten brought by the search engine against the Spanish data protection agency, AEPD, before the European Court of Justice.

“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,” said William Echikson, Google’s EMEA head of free expression in his blog on 26 February. “We believe the answer to that question is ‘no’.”

The Luxembourg judges are considering questions referred by the Spanish court adjudicating over Google Spain's challenge against AEPD's decision about whether the so-called right to be forgotten extended to allowing individuals to require search engines to stop indexing and linking to information held on third-party websites (see box).

“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 decision to remove such content,” Echikson said.

The Google executive added: “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.”

The case, listed as C-131/12, started after Mario Costeja Gonzales entered his name into Google Spain’s site and retrieved newspaper records detailing how he had to put property up for auction to pay off his social security debts.

He wrote both to the newspaper involved, La Vanguardia Ediciones, and to Google Spain, asking for his name to be removed.

The newspaper replied that the record was an official notice required by law which could not be removed. Google Spain referred him to Google US, which it said ran the search engine function.

Mr Costeja Gonzales complained to AEPD, which declined to take action against the newspaper.

However, the agency ordered Google Spain to remove the indexed data and prevent user access in future, saying it fell within the scope of the data protection directive (95/46/EC): the search engine provided a specific search function for users based in Spain, therefore bringing the centre of gravity of its operation within the ambit of EU law.

According to the agency, Google Spain would therefore need to give effect to Mr Costeja Gonzales's right to be forgotten, a type of privacy right enshrined in articles 12 and 14 of the directive.

The search engine objected and brought judicial review proceedings against AEPD’s decision, arguing among other, that the data protection directive did not apply where, as in this case, the company was established outside the European Union.

The Spanish court has referred a number of questions to the European Court of Justice for interpretation of the reach of the directive, including whether the directive applied to Google, whose servers are based in the US but had a presence in the EU via its Spanish subsidiary and used a local domain name for Spanish users.

 

Right to be forgotten v freedom of expression The Spanish court referred three questions to the European Court of Justice about the interpretation of the data protection directive. The third asks about the extent of the right to be forgotten: "3.1 Must it be considered that the rights to erasure and blocking of data, provided for in Article 12(b), and the right to object, provided for by Article 14(a), of Directive 95/46/EC, extend to enabling the data subject to address himself to search engines in order to prevent indexing of the information relating to him personally, published on third parties' web pages, invoking his wish that such information should not be known to internet users when he considers that it might be prejudicial to him or he wishes it to be consigned to oblivion, even though the information in question has been lawfully published by third parties?"