Spain's National Court has asked Europe’s highest court to clarify jurisdiction issues in cases involving individual privacy complaints against Google and search engines in general. According to Spain’s National Court (Audiencia Nacional de España, AN), it is unclear who should make a decision about personal privacy complaints from people who do not want their data to appear on third-party websites such as search engines.
The Spanish court issued a statement last week saying that it has filed a formal request with the European Court of Justice (ECJ) to clarify the rules. "This is the first time that a court raises this issue before the European Court of Justice," the court stated. By formally requesting an answer from the ECJ, Spain hopes to clarify this matter for all European member states. Google wants privacy complaints against it filed in California, where the search engine has its headquarters, the National Court said.
Spain's Data Protection Agency (Agencia Española de Protección de Datos, AEPD) meanwhile reiterated its position that Spaniards and Europeans in general should be able to file this type of grievance in courts in their own countries, and that Google and other search engines are subject to the laws of European countries and of the EU when European citizens are involved. The Data Protection Agency (DPA) started litigation in Spain against Google to delete index files after complaints by Spanish citizens.
The formal request comes against the backdrop of an ongoing debate in Europe about ownership of personal data published online by third-party websites.
The EC in January introduced a major addition to existing online privacy protections in the EU. The new rule is dubbed "the right to be forgotten." This proposed regulation, headed by Eurocommissioner Viviane Reding, aims to give people the right to remove personal data from the internet, so that certain undesirable information about them will not reappear indefinitely every time someone searches for their name in Google or other search engines.
The draft proposal is destined to reform the European 1995 data protection rules and to strengthen online privacy rights. Since it is only a draft, it is hard to predict how “the right to be forgotten” will be interpreted by lawmakers.
“We welcome the Spanish national court’s decision to refer this case to the European Court of Justice. We support the right to be forgotten, and we think there are ways to apply it to intermediaries like search engines in a way that protects both the right to privacy and the right to free expression,” said a Google spokesman.
Peter Fleischer, Google's global privacy counsel, stated in a personal blog post last Wednesday - which does not represent Google's official view on the matter -- that he thinks the Spanish Data Protection Agency's view is an extreme in the "right to be forgotten" spectrum. The right to delete content could be used against search engines and hosting parties that host third-party content. "The DPA is attempting to apply this reading of the 'right to be forgotten' to delete links to content in a search engine, despite the fact that the original content is legal and will remain on the Web," Fleischer wrote last Wednesday, in a comment on the Spanish litigation. He added that these cases would require judicial review because there is a conflict between two fundamental rights: "the right to be forgotten" and freedom of expression.Fleischer is concerned that people will think "the right to be forgotten" can be used to erase any Google listings about them. "I regularly hear requests from people to "remove all references to me, Mrs. X, from the Internet." No law can or should provide such a right, and politicians and DPAs should not mis-lead them to expect it."