Spanish DPA asks ECJ on right to be forgotten

By EDRi · March 14, 2012

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Deutsch: [Recht auf Vergessen: Spanische Datenschutzbehörde wendet sich an EuGH |]

While Spain’s National Court, Audiencia Nacional de Espana (AN) has asked
the European Court of Justice (ECJ) to clarify jurisdiction issues in cases
involving individual privacy complaints against Google and search engines in
general, Spain’s Data Protection Agency DPA (Agencia Española de Protección
de Datos – AEPD) reasserted its position that Spaniards and Europeans in
general should be able to file such complaints in courts in their own

AN stated it was unclear who should make a decision about personal privacy
complaints made by people who did not want their data to appear on
third-party websites such as search engines.

Google wants privacy complaints against it filed in California, where the
search engine has its headquarters but, in AEDP’s opinion, Google and other
search engines are subject to the laws of European countries and of the EU
when European citizens are involved.

The court believes that Spanish citizens whose data was indexed from web
pages located in Spain, in relation to an information published in Spain,
have to defend their right to protection of their personal data in Spain and
based on a Spanish legal norm and not in US. Otherwise, this “would put
those affected in an especially vulnerable situation and prevent or greatly
hinder the effective protection of this right, which
would be inconsistent with the spirit and purpose that inspires the European
Directive and, above all, with an effective protection of a fundamental
right contained in the European Charter of Fundamental Rights.”

“The purpose of Directive 95/46/EC is to provide effective protection in the
European Union to the data of individuals (this is apparent from paragraphs
10 and 18 of the preamble), which would hardly be compatible with the Google
the company claim that the victims who want to exercise their right to
removal, blocking and / or opposition to your browser have to go to the
jurisdiction of the United States and subject to the rules that State. This
company believes that it is not applicable Community legislation (or
consequently the national) data protection and that those affected cannot go
to the authorities and, where appropriate, the national courts for the
protection of their rights” was the Spanish Court’s statement.

AN also asked ECJ to clarify whether Google should remove data from its
search engine’s index and news aggregator even when it is not the creator of
the respective content. Its referral comes only two days after the French
Data Protection Authority said it wanted Google to delay the implementing of
its new privacy policy allowing all of its services (such as Gmail, YouTube
and Google+ ) to share users’ information. The new policy was introduced on
1 March 2012.

In January 2012, the EC added “the right to be forgotten” proposal to the
existing online privacy protections in the EU. This proposed regulation is
meant to strengthen online privacy rights and give people the right to
remove personal data from the Internet.

AEPD hopes that the ECJ ruling in response to questions raised by AN, will
give Spanish, and implicitly European citizens, the exercise of their rights
in their own counties. The data protection authority has received over 100
requests from Spanish citizens to have their data removed from Google’s
search results.

The Spanish court said in a statement on its website, that in response to
the Spanish prosecutor, Google answered it needed more legal justification
for removing references to events in an individual’s history.

Furthermore, the newly proposed European Regulation on Data Protection
establishes a clear regulation regarding the applicability of European data
protection standards. “This Regulation applies to the processing of personal
data of persons resident in the Union by a controller not established in the
Union, when treatment activities are related to: A) supply of goods or
services to those interested in the Union, or b) control of their
behaviour,” says Article 3.2 of the proposed regulation which also includes
a new rule on the right to be forgotten in Article 17.

A Google spokesman told Reuters: “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.”

Information note of DPA on the un-raised questions by ECJ on the exercise of
rights against Internet search engines (only in Spanish, 2.03.2012)

Spain Seeks Jurisdiction Guidance From EU for Google Privacy Complaints

Spain refers Google privacy complaints to EU’s top court (2.03.2012)