As Viviane Reding, vice-president of the European Commission, congratulates herself for forcing Google to comply with the right to be forgotten, she might want to take a moment to think about some issues that have slipped through the net. In fact, those drafting their application to be forgotten by the world’s biggest search engine should hold off too. This issue is far from resolved.
The irony of this case so far is that Costeja González, the man who appealed to Google to have an old newspaper article about his former financial difficulties removed from search results, will never be forgotten, even though he won. He will be referred to by law students, privacy advocates and more for generations to come as the main character in the right to be forgotten debate.
Out of line?
The EU has competence to regulate on the protection of personal data but in considering this area of law, it decided that the original legislation on this issue was insufficient. In 2012, it presented a new draft, which has been recently approved by the European Parliament but not, as yet, by the Council of Ministers. It should be a rubber stamp exercise; the difficult part is over now.
This draft regulation was mentioned in an opinion by the Advocate General Jääskinen but not referred to in the judgement which was entirely based on the current legislation. Unfortunately for companies processing personal data, the new law brings no changes to the current law as stated by this Google judgement; it only clarifies it.
The major sticking points were what it is to process or control personal data and the geographical boundaries of the EU legislation on data protection.
Google argued that it wasn’t processing any data, it was merely allowing access to it, that it didn’t have any control over it and that ultimately, as an American company, it was not subject to EU law.
The ECJ rejected each one of those points. Therefore even businesses established outside of the EU and offering their services entirely online will be subject to this law as long as they offer their services or products in the territory of the EU. Think beyond search engines such Ask or Yahoo: it would also include blogs, online rentals or credit check agencies.
It makes sense since it would be relatively easy to relocate outside of the EU for the purposes of infringing EU legislation.
Even if these issues don’t throw up problems in the future, the ECJ is already skating on thin ice. It had no right to rule against Google as it did. Despite some misconceptions, the ECJ is not a court of appeal or a last resort for those unhappy with their national courts. The ECJ is there to clarify the interpretation of EU law.
In the Google case, the ECJ has gone above and beyond that jurisdiction. It should have limited itself to explain the correct interpretation of the directive being applied so that the Spanish court asking the question would resolve the dispute. Instead, the ECJ went on to apply the correct interpretation to the actual set of facts and said that the old debts of Mr Costeja González were not really relevant – thus Google should remove the information.
In other words, the ECJ took a view on the facts and resolved as any “normal” court of justice would do, which is beyond its competence and jurisdiction. Nevertheless, the Spanish court dealing with the case would be unlikely to go against that decision and will merely ratify the same decision.
Obviously Google is not happy about all this but the idea that this case will change the face of the internet is outlandish. A repressive government, for example, doesn’t need to rely on a ruling from the ECJ to limit freedom of expression by removing content it doesn’t like from searches. And what’s more, Google has a record of trying to stop this kind of behaviour in places like Argentina.
The real consequences of this case are not so much related to our right to be forgotten, but how we define the accuracy of information that is out there. The ECJ ruled that a newspaper article about González’s debts from 15 years ago was no longer accurate, even if it was truthful. It’s not therefore clear what the limit is. Is it 15 years? ten years? five years? Clearly, new decisions will have to be made to define this concept, but the ECJ should have provided an interpretation to that problematic concept and it failed to do so.