June 12, 2014

The Internet, Social Media and the Law: Demanding to Delete your Online Footprint

A New Right for Individuals to Control their Online Information

On 14 May 2014, the Grand Camber of the European Court of Justice (Court) delivered a judgment that could widely affect how search engines (such as Google) process, record, store and present information relating to individuals.  The judgment addressed and confirmed the right of an individual to request that information relating to that individual be removed from search engines.

The Judgment

In Google Inc v Agencia  Espanola de Proteccion de Datos, the Court held that search engines are involved in processing personal data; and that operators of search engines are data controllers for the purposes of the Data Protection Directive(DPD).

The Court held that search engines have a duty to ensure that published search results are compatible with the rights of individuals.   The Court recognised that there is also a public interest and right to access information that needs to be protected, but on balance, the Court found that the rights of individuals, about whom data is collected, override the public interest (with a few recognised exceptions such as public figures).

The Court went on to find that the DPD includes a right for individuals to be forgotten – which extends to include a right for individuals to demand that search engines remove information that an individual does not want to be published about them.  Interestingly, the Court held that the right existed irrespective of the individual’s ability to show any prejudice.  The Court found support for its position in Articles 7 and 8 of the European Union Charter of Fundamental Rights.1

The Effects of the Judgment

While the judgment does not directly apply to Australia or jurisdictions outside the European Union, it does represent a significant step in allowing individuals greater control over information that is published about them on the Internet.

The importance and impact of the judgment has already resulted in Google offering a service that allows European citizens to request that links to inadequate, irrelevant or no longer relevant information be removed from its search results.  Within 24 hours of offering the service, Google received more than 12,000 requests.  Google has now appointed Professor Luciano Floridi to advise Google on what is required to comply with the judgment.

The judgment has received significant criticism, as it may also represent a significant curtailment to other rights, such as the right to freedom of expression, freedom of speech and the public’s right to access information (which are rights also provided for by the EU Charter of Fundamental Rights).

While the exact impact of the judgment in Australia and in non-European jurisdictions is currently unknown, it is likely that the issue will soon be tested in Australia and elsewhere, and that the judgment of the Court will represent an important precedent for consideration.

Key Points:

  • The judgment represents a significant step in providing individuals with greater control over what information is published about them or is available to the public on search engines. 
  • If you are a European Citizen you now have a right to request that information about you be be deleted from search engines (in particular, where that information is inadequate, irrelevant or no longer relevant). 
  • While the judgment is unlikely to apply to Australia or non-European jurisdictions, it is likely that the issue will be addressed in Australia.  Australian courts could well find the Court’s judgment persuasive.

 

Footnotes

1. Resource: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0389:0403:en:PDF