This briefing note is only intended as a general statement of the law and no action should be taken in reliance on it without specific legal advice.

The European Court of Justice Judgment on Google, 13 May 2014, explained
01 September 2014

The European Court of Justice Judgment on Google, 13 May 2014, explained

On 13 May 2014 the ECJ handed down a controversial Judgment on data protection. The implications for individuals and for companies that do business in the EU are far- reaching.

Background to the case

In 1998 a Spanish newspaper published the name of a Spanish man who had been forced to auction his house to cover his debts.  In 2010 a Google search of his name still led to two links to the story about him from the online archive of the newspaper. The newspaper refused to remove the story from its archive.  The individual then complained to Google that the articles contained personal data, and asked it to remove the links to the article.  Google refused to do so.  The case was eventually referred to the ECJ.

The ECJ Judgment

The ECJ found that Google processes personal data within the meaning of the EU Data Protection Directive.  Until the Judgment, Google had argued successfully in similar cases that it simply indexes material but does not "process" it. Google, as US –headquartered company, believed that it did not have the same data protection obligations as a European- based company.

The ECJ concluded that if a company had a subsidiary within the EU, it was still subject to EU data privacy laws.  Potentially other US companies with subsidiaries operating in Europe, such as Twitter, Facebook or LinkedIn, will also be subject to EU data protection laws.

What this means in practice

The ECJ ruled that the request to remove a link may be legitimate even if the information is true. The test is whether the information is "inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed, unnecessary or irrelevant".

In each case, the request to remove a link on Google has to be balanced with Google's freedom of expression and public interest in the matter.   The ECJ stressed in the Judgment that the factors which should be considered are whether the right to privacy and the protection of personal data might be affected by showing particular links following a search against the name of an individual or company.

The ECJ found that the interests of the Spanish man had priority because the information was sensitive, the announcement was published 16 years ago and there was no particular public interest in having these links displayed.  For these reasons, the links should be removed from Google.

Health warnings

  1. Although Google are removing links, and have put up a warning on some search pages that "search results may have been removed as a result of European data protections laws",    it is difficult to remove links. Google says it is getting over 1000 requests a day and that it has a backlog of requests.
  2. Even if a link is successfully removed from Google's index, the original link still exists – so in the case of the Spanish man, the newspaper archive remains active (and if a person knew the details about him were in that newspaper, they could still find them online).
  3. Removal of the link will only apply to Google in Europe: if a link is removed within the EU, it may still be available when "Googling" in the US or other territories, or via, even from within the EU.  However, for many individuals or companies operating in the EU, trying to remove an offending link from EU Google searches will still be well worth doing.
  4. There have been some leaks to the press about those individuals and companies who are trying to remove links.
  5. There are websites devoted to resurrecting the links which have been removed to date, on the basis that freedom of speech is being attacked.
  6. Journalists who are notified that a link is being removed may choose to write about it: Robert Peston, the BBC economics editor was incensed when a story originally published in 2007 was taken down by Google in July 2014. He then wrote about it, and drew a great deal of attention to the original story, which most people had forgotten about.

If you have any questions, please contact Ramona Mehta or Dina Shiloh.