By Yannic Blaschke

On 10 January 2019, the Advocate General (AG) Maciej Szpunar delivered two Opinions to the Court of Justice of the European Union (CJEU) that could have far-reaching implications for the “right to be forgotten”, which aims at enabling individuals to lead an autonomous life without stigmatisation from their past actions.

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A geographical limit to the “right to be forgotten”

In his first opinion, case Google v CNIL (C-507/17), AG Szpunar recommens the CJEU to limit the scope of application of search-engine de-referencing obligations to the territory of the EU. The case at hand was referred to the CJEU after a dispute between search engine operator Google and French Data Protection Authority CNIL. The CNIL had imposed a 100 000 euro fine on Google after the company refused to remove web pages relating to a natural person from all domains listed in its search engine (rather than just EU Member State domains).

In his Opinion, AG Szpunar held that the “right to be forgotten” must be balanced against other fundamental rights, such as the right to data protection and the right to privacy, as well as the legitimate public interest in accessing the information sought. The AG noted that, if worldwide de-referencing were permitted, the EU authorities would not be able to define and determine a right to receive information, especially since public interest in accessing information will necessarily vary from one third State to another, depending on its geographic location. There would thus be a risk that persons in third States would be prevented from accessing information and, in turn, that third States would prevent persons in the EU Member States from accessing information. The AG did, however, not rule out the principal possibility for the existence of cases in which worldwide de-referencing would be justified. He recommended the CJEU to rule that upon receiving a request for de-referencing, search engine providers should not be obliged to implement such measures on all its listed domains. Nevertheless, they should be obliged to implement all possible measures, including geo-blocking, to enforce effective de-referencing for all IP addresses located in the EU, regardless of the used domain.

Search engine operator’s processing of sensitive data

The second Opinion of the AG, case G.C. and Others v CNIL (C-136/17), referred to de-referencing obligations of search engine providers in regard to sensitive categories of data. Following a dispute between the French Data Protection Authority CNIL and the search engine operator Google, Szpunar argued that the prohibitions and restrictions regarding special categories of data (under the previous Data Protection Directive 95/46 EC) cannot apply to the operator of a search engine as if it had itself placed sensitive data on the web pages concerned. Since the activity of a search engine logically takes place only after (sensitive) data have been placed online, those prohibitions and restrictions can, in his opinion, therefore apply to a search engine only by reason of that referencing and, thus, through subsequent verification, when a request for de-referencing is made by the person concerned. Szpunar held, however, that where referencing of sources that store sensitive data occurs, search engine providers have an obligation to react to de-referencing requests after carefully balancing the the right to respect for private life and the right to protection of data with the right of the public to access the information concerned and the right to freedom of expression of the person who provided the information.

Opinions of the Advocates General are not legally binding, but often considerably influence the final verdict of the CJEU. The judgements in both preliminary rulings will be given at a later stage.

Advocate General Szpunar proposes that the Court should limit the scope of the dereferencing that search engine operators are required to carry out to the EU (10.01.2019)
https://curia.europa.eu/jcms/upload/docs/application/pdf/2019-01/cp190002en.pdf

Advocate General Szpunar proposes that the Court should hold that the operator of a search engine must, as a matter of course, accede to a request for the dereferencing of sensitive data (10.01.2019)
https://curia.europa.eu/jcms/upload/docs/application/pdf/2019-01/cp190001en.pdf

Google’s forgetful approach to the “right to be forgotten” (14.12.2016)
https://edri.org/googles-forgetful-approach-right-forgotten/

More “right to be forgotten” confusion (15.09.2015)
https://edri.org/more-right-to-be-forgotten-confusion/

Google now supports AND opposes the “right to be forgotten” (27.08.2014)
https://edri.org/google-now-supports-and-opposes-right-forgotten/

Google and the right to be forgotten – the truth is out there (02.07.2014)
https://edri.org/google-right-forgotten-truth/

Google’s right to be forgotten – industrial scale misinformation? (09.06.2014)
https://edri.org/forgotten/

(Contribution by Yannic Blaschke, EDRi intern)

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