Suing Google to enforce ‘right to be forgotten’

“Podria tu olvidarse? Tu recuerdo siempre me acompana” (Could I forget you? Your memory will always accompany me), thus, Filipino national hero Jose Rizal assured his inamorata Josephine Bracken. She sensed that after their meeting in his prison cell they would never see each other again and he would forget her. This is an excerpt from my forthcoming book on Rizal, whose titillating title I will not disclose yet.

People who do not want to be forgotten should hearken to Confucius who said: “To become immortal, you must plant a tree, sire a son, and write a book.” Of course he said it in Chinese, stupid, but I forgot the Chinese version. Since I have done the three things that Confucius instructed, can I now rest, assured that I will never be forgotten?

There are people, though, who wish to be forgotten – or an unsavory part of their past. Check Google and other internet search engines if they have posted unsavory things about you. Ask those posting unwanted items to take them out. If they refuse, can you sue them and win?

It depends on whether you live within the European Union (EU).  On May 13, 2014, the Court of Justice of the European Union held that an internet search engine operator is responsible for the processing that it carries out of personal data which appear on web pages published by third parties. Thus, if, following a search made on the basis of a person’s name, the list of results displays a link to a web page which contains information on such person, that data subject may approach the operator directly and, where the operator does not grant his request, bring the matter before the competent authorities in order to obtain, under certain conditions, the removal of that link from the list of results. See Case C-131/12, Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González, Luxembourg, 13 May 2014.

The objective of a Directive of the European Parliament is to protect the fundamental rights and freedoms of natural persons (in particular the right to privacy) when personal data are processed, while removing obstacles to the free flow of such data. (OJ 1995 L 281, p. 31).

Mario Costeja González, a Spanish lawyer, filed in 2010 with the Agencia Española de Protección de Datos (Spanish Data Protection Agency “AEPD”) a complaint against La Vanguardia Ediciones SL, a Spanish newspaper, Google Spain, and Google Inc. He alleged that when an internet user entered his name in Google Search the results displayed links to La Vanguardia’s newspaper containing an announcement for a real-estate auction following an attachment proceeding for the recovery of social security debts owed by him.

González requested that: (1) La Vanguardia be required either to remove or alter the pages in question so that the personal data relating to him no longer appeared, and (2) Google Spain or Google Inc. be required to remove or conceal personal data relating to him so that the data no longer appeared in the search results and in the links to La Vanguardia. González claimed that the attachment proceedings had been fully resolved and referring to them was now irrelevant.

The AEPD rejected the complaint against La Vanguardia because the attachment proceedings had been lawfully published by it. However, AEPD upheld the complaint against Google Spain and Google Inc., and directed them to take necessary measures to withdraw the data from their index and to render access to the data impossible in the future.

Google Spain and Google Inc. sued to annul the AEPD’s decision before the Audiencia Nacional (National High Court, Spain). The Audiencia referred certain questions to the Court of Justice of the European Union.

The Court held that where the subject of the data requests that links to web pages be removed because he wishes the information on those pages relating to him to be ‘forgotten’, if the inclusion of those links is incompatible with the Directive, the links and information must be erased. Even accurate data may, in time, become incompatible with the Directive where they appear “inadequate, irrelevant or no longer relevant, or excessive” in relation to the purposes for which they were processed and the time that has elapsed.

The court said that a fair balance should be sought between the legitimate interest of internet users potentially interested in having access to that information  and the data subject’s fundamental rights under the Charter. While the data subject’s rights protected by the Charter also override, as a general rule, the interest of internet users, that balance may depend on the nature of the information and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary according to the role played by the data subject in public life.

(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites:  www.MilitaryandCriminalLaw.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most funny, interesting, and useful radio program in Hawaii on KNDI at 1270 AM dial every Thursday at 7:30 a.m. This article is a general overview of the subject matter discussed and is not intended as legal advice. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)