Case C-131/12 Google Spain: Responsibility of search engine operators for the processing of personal data

A lot has already been written concerning this judgment. I was trying to post a meaningful summary of the interesting points of the judgment but I gave up since it seems to be very important in its entirety. I apologise in advance for the lengthy text that follows.

The issue is the application of Directive 95/46 on the protection of individuals with regard to the processing of personal data (“Directive 95/46” or “the Directive”) vis-a-vis search engine operators, in particular Google in the case referred for a preliminary ruling.

The Court’s (“CoJ”) press release provides a good summary of the facts of the case in the main proceedings:

In 2010 Mario Costeja González, a Spanish national, lodged with the Agencia Española de Protección de Datos (Spanish Data Protection Agency, the AEPD) a complaint against La Vanguardia Ediciones SL (the publisher of a daily newspaper with a large circulation in Spain, in particular in Catalonia) and against Google Spain and Google Inc. Mr Costeja González contended that, when an internet user entered his name in the search engine of the Google group (‘Google Search’), the list of results would display links to two pages of La Vanguardia’s newspaper, of January and March 1998. Those pages in particular contained an announcement for a real-estate auction organised following attachment proceedings for the recovery of social security debts owed by Mr Costeja González.

With that complaint, Mr Costeja González requested, first, that La Vanguardia be required either to remove or alter the pages in question (so that the personal data relating to him no longer appeared) or to use certain tools made available by search engines in order to protect the data. Second, he requested that Google Spain or Google Inc. be required to remove or conceal the personal data relating to him so that the data no longer appeared in the search results and in the links to La Vanguardia. In this context, Mr Costeja González stated that the attachment proceedings concerning him had been fully resolved for a number of years and that reference to them was now entirely irrelevant.

The AEPD rejected the complaint against La Vanguardia, taking the view that the information in question had been lawfully published by it. On the other hand, the complaint was upheld as regards Google Spain and Google Inc. The AEPD requested those two companies to take the necessary measures to withdraw the data from their index and to render access to the data impossible in the future. Google Spain and Google Inc. brought two actions before the Audiencia Nacional (National High Court, Spain), claiming that the AEPD’s decision should be annulled. It is in this context that the Spanish court referred a series of questions to the Court of Justice.

The material scope of Directive 95/46

The CoJ began by first examining whether Directive 95/46 applies in respect of the activity of a search engine as a provider of content. This activity consists in finding information published or placed on the internet by third parties, indexing it automatically, storing it temporarily and, finally, making it available to internet users according to a particular order of preference. In this respect two questions arise:

First, must this activity be classified as ‘processing of personal data’ within the meaning of 2(b) of the Directive when that information contains personal data?

Second, must the operator of a search engine must be regarded as the ‘controller’ in respect of that processing of the personal data, within the meaning of Article 2(d) of Directive 95/46?

Starting by the first question, Article 2(b) of Directive 95/46 defines ‘processing of personal data’ as ‘any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction’.

In this respect, the CoJ recalls that it has already stated that the operation of loading personal data on an internet page must be considered to be such ‘processing’ within the meaning of Article 2(b) of Directive 95/46 (see Case C‑101/01 Lindqvist EU:C:2003:596, paragraph 25). In the case in the main proceedings, the search engines found indexed and stored data which include information relating to identified or identifiable natural persons and thus ‘personal data’ within the meaning of Article 2(a) of that Directive. These data were then made available to their users.

The CoJ found that in exploring the internet automatically, constantly and systematically in search of the information which is published there, the operator of a search engine ‘collects’ such data which it subsequently ‘retrieves’, ‘records’ and ‘organises’ within the framework of its indexing programmes, ‘stores’ on its servers and, as the case may be, ‘discloses’ and ‘makes available’ to its users in the form of lists of search results. As those operations are referred to expressly and unconditionally in Article 2(b) of Directive 95/46, they must be classified as ‘processing’ within the meaning of that provision.

The fact that the operator of the search engine also carries out the same operations in respect of other types of information and does not distinguish between the latter and the personal data is irrelevant. Same goes for the fact that those data have already been published on the internet and are not altered by the search engine. It does not change the above conclusion.

Coming now to the second question whether the operator of a search engine must be regarded as the ‘controller’ in respect of the processing of personal data, i.e. as ‘the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data’, pursuant to Article 2(d) of Directive 95/46.

The CoJ replied this question too in the affirmative. It is the search engine operator which determines the purposes and means of that activity and thus of the processing of personal data that it itself carries out within the framework of that activity. Thus, the search engine operator must be regarded as the ‘controller’ in respect of that processing pursuant to Article 2(d) of the Directive.

In this respect, the CoJ took into account: first, that the processing of personal data carried out in the context of the activity of a search engine can be distinguished from and is additional to that carried out by publishers of websites, consisting in loading those data on an internet page; second, that the activity of search engines plays a decisive role in the overall dissemination of those data in that it renders the latter accessible to any internet user making a search on the basis of the data subject’s name; third, that when users carry out their search on the basis of an individual’s name, result in them obtaining through the list of results a structured overview of the information relating to that individual that can be found on the internet enabling them to establish a more or less detailed profile of the data subject.

Thus, as long as the activity of a search engine is liable to affect significantly, and additionally compared with that of the publishers of websites, the fundamental rights to privacy and to the protection of personal data, the operator of the search engine must ensure, within the framework of its responsibilities, powers and capabilities, that the activity meets the requirements of Directive 95/46. Only this would ensure that the guarantees laid down by the Directive have full effect and that effective and complete protection of data subjects, in particular of their right to privacy, are actually achieved.

Finally, the operator of a search engine is not released from its responsibility for the processing of personal data that it carries out in the context of the engine’s activity even in the case that publishers of websites indicate to operators of search engines, by means in particular of exclusion protocols such as ‘robot.txt’ or codes such as ‘noindex’ or ‘noarchive’, that they wish specific information published on their site to be wholly or partially excluded from the search engines’ automatic indexes. Again, the above conclusions remain unchanged.

The territorial scope of Directive 95/46

Recital 19 in the preamble to Directive 95/46 states that ‘establishment on the territory of a Member State implies the effective and real exercise of activity through stable arrangements’ and that ‘the legal form of such an establishment, whether simply [a] branch or a subsidiary with a legal personality, is not the determining factor’.

In the case in the main proceedings, it is not disputed that Google Spain engages in the effective and real exercise of activity through stable arrangements in Spain. As it moreover has separate legal personality, it constitutes a subsidiary of Google Inc. on Spanish territory and, therefore, an ‘establishment’ within the meaning of Article 4(1)(a) of Directive 95/46. In order to satisfy the criterion laid down in that provision, it is also necessary that the processing of personal data by the controller be ‘carried out in the context of the activities’ of an establishment of the controller on the territory of a Member State.

In the light of that objective of Directive 95/46 and of the wording of Article 4(1)(a), the CoJ held that the processing of personal data for the service of a search engine such as Google Search, which is operated by an undertaking that has its seat in a third State but has an establishment in a Member State, is carried out ‘in the context of the activities’ of that establishment if the latter is intended to promote and sell, in that Member State, advertising space offered by the search engine which serves to make the service offered by that engine profitable.

In such circumstances, the activities of the operator of the search engine and those of its establishment situated in the Member State concerned are inextricably linked: the activities relating to the advertising space constitute the means of rendering the search engine at issue economically profitable and that engine is, at the same time, the means enabling those activities to be performed.

The extent of the responsibility of the operator of a search engine under Directive 95/46

The following question is whether Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 oblige the operator of a search engine to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person. And what if that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, its publication in itself on those pages is lawful?

First of all, the CoJ recalls that Directive 95/46 seeks to ensure a high level of protection of the fundamental rights and freedoms of natural persons, in particular their right to privacy, with respect to the processing of personal data (see IPI EU:C:2013:715, paragraph 28).

According to recital 25 in the preamble to Directive 95/46, the principles of protection laid down by the directive are reflected, on the one hand, in the obligations imposed on persons responsible for processing, in particular regarding data quality, technical security, notification to the supervisory authority and the circumstances under which processing can be carried out; on the other hand, in the rights conferred on individuals whose data are the subject of processing to be informed that processing is taking place, to consult the data, to request corrections and even to object to processing in certain circumstances.

The provisions of Directive 95/46, in so far as they govern the processing of personal data liable to infringe fundamental freedoms, in particular the right to privacy, must necessarily be interpreted in the light of fundamental rights, which are now set out in the Charter (see Case C‑274/99 P Connolly v Commission EU:C:2001:127, paragraph 37, and Österreichischer Rundfunk and Others EU:C:2003:294, paragraph 68). Article 7 of the Charter guarantees the right to respect for private life, whilst Article 8 of the Charter expressly proclaims the right to the protection of personal data.

Article 8(2) and (3) specify that such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law, that everyone has the right of access to data which have been collected concerning him or her and the right to have the data rectified, and that compliance with these rules is to be subject to control by an independent authority. Those requirements are implemented inter alia by Articles 6, 7, 12, 14 and 28 of Directive 95/46.

Article 12(b) of Directive 95/46 provides that Member States are to guarantee every data subject the right to obtain from the controller the rectification, erasure or blocking of data the processing of which does not comply with the provisions of Directive 95/46, in particular because of the incomplete or inaccurate nature of the data. This final point relating to the case where certain requirements referred to in Article 6(1)(d) of Directive 95/46 are not observed is stated by way of example and is not exhaustive.

Thus, it follows that the non-compliant nature of the processing, which is capable of conferring upon the data subject the right guaranteed in Article 12(b) of the Directive, may also arise from non-observance of the other conditions of lawfulness that are imposed by the directive upon the processing of personal data.

In this respect, it should be noted that, subject to the exceptions permitted under Article 13 of Directive 95/46, all processing of personal data must comply, first, with the principles relating to data quality set out in Article 6 of the Directive and, secondly, with one of the criteria for making data processing legitimate listed in Article 7 of the Directive.

Under Article 6 of Directive 95/46 and without prejudice to specific provisions that the Member States may lay down in respect of processing for historical, statistical or scientific purposes, the controller has the task of ensuring that personal data are processed ‘fairly and lawfully’; that they are ‘collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes’; that they are ‘adequate, relevant and not excessive in relation to the purposes for which they are collected and/or further processed’; that they are ‘accurate and, where necessary, kept up to date’; and, finally, that they are ‘kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data were collected or for which they are further processed’.

In this context, the controller must take every reasonable step to ensure that data which do not meet the requirements of that provision are erased or rectified. Processing such as that at issue in the main proceedings carried out by the operator of a search engine is capable of being covered by the ground in Article 7(f). This provision permits the processing of personal data where it is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject, in particular his right to privacy.

Application of Article 7(f) thus necessitates a balancing of the opposing rights and interests concerned, in the context of which account must be taken of the significance of the data subject’s rights arising from Articles 7 and 8 of the Charter.

While the question whether the processing complies with Articles 6 and 7(f) of Directive 95/46 may be answered in the context of a request as provided for in Article 12(b) of the Directive, the data subject may, in addition, rely in certain conditions on the right to object laid down in subparagraph (a) of the first paragraph of Article 14 of the Directive. Under subparagraph (a) of the first paragraph of Article 14 of Directive 95/46, Member States are to grant the data subject the right to object at any time on compelling legitimate grounds relating to his particular situation to the processing of data relating to him, save where otherwise provided by national legislation. The balancing to be carried out under subparagraph (a) of the first paragraph of Article 14 thus enables account to be taken in a more specific manner of all the circumstances surrounding the data subject’s particular situation.

Where there is a justified objection, the processing instigated by the controller may no longer involve those data. Requests under Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 may be addressed by the data subject directly to the controller who must then duly examine their merits and, as the case may be, end processing of the data in question. Where the controller does not grant the request, the data subject may bring the matter before the supervisory authority or the judicial authority so that it carries out the necessary checks and orders the controller to take specific measures accordingly.

In this connection, it is clear from Article 28(3) and (4) of Directive 95/46 that each supervisory authority is to hear claims lodged by any person concerning the protection of his rights and freedoms in regard to the processing of personal data and that it has investigative powers and effective powers of intervention enabling it to order in particular the blocking, erasure or destruction of data or to impose a temporary or definitive ban on such processing.

In view of the above, processing of personal data, such as that at issue in the main proceedings, carried out by the operator of a search engine is liable to affect significantly the fundamental rights to privacy and to the protection of personal data when the search by means of that engine is carried out on the basis of an individual’s name. That processing enables any internet user to obtain through the list of results a structured overview of the information relating to that individual that can be found on the internet and thereby to establish a more or less detailed profile of him.

Furthermore, the CoJ continued, the effect of the interference with those rights of the data subject is heightened on account of the important role played by the internet and search engines in modern society, which render the information contained in such a list of results ubiquitous (see, to this effect, Joined Cases C‑509/09 and C‑161/10 eDate Advertising and Others EU:C:2011:685, paragraph 45). Due to the potential seriousness of that interference, it cannot be justified by merely the economic interest which the operator of such an engine has in that processing.

However, inasmuch as the removal of links from the list of results could, depending on the information at issue, have effects upon the legitimate interest of internet users potentially interested in having access to that information, a fair balance should be sought in particular between that interest and the data subject’s fundamental rights under Articles 7 and 8 of the Charter.

That balance may depend, in specific cases, on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life. Following the appraisal of the conditions for the application of Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 which is to be carried out when a request such as that at issue in the main proceedings is lodged with it, the supervisory authority or judicial authority may order the operator of the search engine to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages published by third parties containing information relating to that person, without an order to that effect presupposing the previous or simultaneous removal of that name and information from the web page on which they were published.

The CoJ reiterates in this respect that the operator of the search engine as the controller in respect of that processing must ensure, within the framework of its responsibilities, powers and capabilities, that that processing meets the requirements of Directive 95/46, in order that the guarantees laid down by the directive may have full effect.

Furthermore, the processing by the publisher of a web page consisting in the publication of information relating to an individual may, in some circumstances, be carried out ‘solely for journalistic purposes’ and thus benefit, by virtue of Article 9 of Directive 95/46, from derogations from the requirements laid down by the Directive.

However that does not appear to be so in the case of the processing carried out by the operator of a search engine. What is thus interesting is that in certain circumstances the data subject may be capable of exercising the rights referred to in Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 against that operator but not against the publisher of the web page.

Finally, pursuant to Article 7 of Directive 95/46, the outcome of the weighing of the interests at issue to be carried out under Article 7(f) and subparagraph (a) of the first paragraph of Article 14 of the Directive may differ according to whether the processing carried out by the operator of a search engine or by the publisher of the web page is at issue. That may be so given that the legitimate interests justifying the processing may be different and the consequences of the processing for the data subject, and in particular for his private life, are not necessarily the same. Indeed, since the inclusion in the list of results, displayed following a search made on the basis of a person’s name, of a web page and of the information contained on it relating to that person makes access to that information appreciably easier for any internet user making a search in respect of the person concerned and may play a decisive role in the dissemination of that information, it is liable to constitute a more significant interference with the data subject’s fundamental right to privacy than the publication on the web page.

Thus, the CoJ found that the operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful.

The scope of the data subject’s rights guaranteed by Directive 95/46

But can the data subject require the operator of a search engine to remove from the list of results displayed following a search made on the basis of his name links to web pages published lawfully by third parties and containing true information relating to him, on the ground that that information may be prejudicial to him or that he wishes it to be ‘forgotten’ after a certain time?

The CoJ stated first that the application of Article 12(b) of Directive 95/46 is subject to the condition that the processing of personal data be incompatible with the Directive. Such incompatibility may result from the fact that such data are inaccurate as well as from the fact that they are inadequate, irrelevant or excessive in relation to the purposes of the processing, that they are not kept up to date, or that they are kept for longer than is necessary unless they are required to be kept for historical, statistical or scientific purposes.

It follows from those requirements, laid down in Article 6(1)(c) to (e) of Directive 95/46, that even initially lawful processing of accurate data may, in the course of time, become incompatible with the Directive where those data are no longer necessary in the light of the purposes for which they were collected or processed. That is so in particular where they appear to be inadequate, irrelevant or no longer relevant, or excessive in relation to those purposes and in the light of the time that has elapsed.

Therefore, if it is found, following a request by the data subject pursuant to Article 12(b) of Directive 95/46, that the inclusion in the list of results displayed following a search made on the basis of his name of the links to web pages published lawfully by third parties and containing true information relating to him personally is, at this point in time, incompatible with Article 6(1)(c) to (e) of the Directive because that information appears, having regard to all the circumstances of the case, to be inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes of the processing at issue carried out by the operator of the search engine, the information and links concerned in the list of results must be erased.In each case the processing of personal data must be authorised under Article 7 for the entire period during which it is carried out.

Thus, when appraising such requests made in order to oppose processing such as that at issue in the main proceedings, it should in particular be examined whether the data subject has a right that the information relating to him personally should, at this point in time, no longer be linked to his name by a list of results displayed following a search made on the basis of his name.

It is not necessary in order to find such a right that the inclusion of the information in question in the list of results causes prejudice to the data subject. As the data subject may, in the light of his fundamental rights under Articles 7 and 8 of the Charter, request that the information in question no longer be made available to the general public by its inclusion in such a list of results, it should be held that those rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in finding that information upon a search relating to the data subject’s name.

However, that would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of inclusion in the list of results, access to the information in question.

Concerning, in particular, a situation at issue in the case in point, it should be held that, due to the sensitivity for the data subject’s private life of the information contained in those announcements and to the fact that its initial publication had taken place 16 years earlier, the data subject establishes a right that that information should no longer be linked to his name by means of such a list. So since there do not appear to be particular reasons substantiating a preponderant interest of the public in having, in the context of such a search, access to that information, the data subject may, by virtue of Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46, require those links to be removed from the list of results. However this is an issue for the referring court to establish.

In view of the above, upon request by the data subject, it should inter alia be examined whether the data subject has a right that the information in question relating to him personally should, at this point in time, no longer be linked to his name by a list of results displayed following a search made on the basis of his name, without it being necessary in order to find such a right that the inclusion of the information in question in that list causes prejudice to the data subject.

As the data subject may, in the light of his fundamental rights under Articles 7 and 8 of the Charter, request that the information in question no longer be made available to the general public on account of its inclusion in such a list of results, those rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in having access to that information upon a search relating to the data subject’s name. However, that would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of its inclusion in the list of results, access to the information in question.

One thought on “Case C-131/12 Google Spain: Responsibility of search engine operators for the processing of personal data

  1. Pingback: Joined Cases C-129/13 and C-130/13 Kamino: EU law, national law and rights of the defence | EU litigation

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s