Álvaro Fomperosa Rivero, ‘Right to Be Forgotten in the European Court of Justice Google Spain Case: The Right Balance of Privacy Rights, Procedure, and Extraterritoriality’

In the seminal Google Spain case, the European Court of Justice had the opportunity to define the applicability of the Data Protection Directive to search engines in general and the boundaries between privacy rights and free speech in the Internet age in particular. By broadly defining its territorial scope, the ECJ characterized search engines as ‘controllers’, for which the Directive sets burdensome obligations related to data subjects’ rights to blockage, erasure, and objection. The ECJ went further by recognizing a broader right to request search engines to delist links to personal information upon request by the data subject, even when the information is legally published: the so-called Right to be Forgotten.

This paper proceeds as follows. First, I analyze the conclusions of the Court and offer a critique on the adjudication, particularly that: 1) the ruling effectively places search engines in permanent breach of data protection rules; 2) the decision shows apparent preference for privacy rights and improperly balances other fundamental rights; 3) the Court acknowledges the existence of a Right to be Forgotten within the boundaries of the Data Protection Directive.

Next, I assess EU law and case law of the European Court of Human Rights on the balancing of privacy and free speech freedoms. I conclude that the holding in Google Spain barely fits within the boundaries of the acquis, particularly in light of the principle of proportionality. I also scrutinize the striking relinquishment of the balancing of fundamental rights by public authorities that stems from this decision. The Google Spain holding transfers the foundational task of defining the public interest in the balancing of fundamental rights, which traditionally has lied with public authorities in Europe, to private economics entities: search engines, which effectively become the gatekeepers of privacy and censors of the Internet.

Subsequently, I analyze certain open procedural questions related to the notification of delisting to webmasters and users, as well as search engines’ obligation to give reasons for refusals to delist.

Finally, I analyze the potential threat of conflict of laws stemming from the extraterritorial application of the Right to be Forgotten, in particular vis-à-vis the United States: it seems that the European Union intends delisting to be universal, across all forms of the Internet, which could conflict with non-EU citizens’ rights to truthful information. I propose using geo-filtering to ensure the effectiveness of the ruling, but restrained to the boundaries of the European Union.

Fomperosa Rivero, Álvaro, Right to Be Forgotten in the European Court of Justice Google Spain Case: The Right Balance of Privacy Rights, Procedure, and Extraterritoriality (February 13, 2017). European Union Law Working Papers, No 19, Stanford-Vienna Transatlantic Technology Law Forum (2017).

First posted 2017-02-15 06:57:48

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