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Google Spain, the Right to Be Forgotten, and the Construction of the Public Sphere1

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Google Spain, the Right to Be Forgotten, and the Construction of the Public Sphere1 Robert Post Draft 2 Data Privacy and Dignitary Privacy: Google Spain, the Right to Be Forgotten, and the Construction of the Public Sphere1 Lying at the intersection of big data and mass communication, the Internet has become the site of furious tension between data privacy and freedom of expression. The conflict is especially acute in the European Union (EU), which highly prizes the protection of personal information. Data privacy is typically secured by “fair information practices” that seek to ensure the accuracy, transparency, and instrumental rationality of data processing.2 Article 40 of the 1978 French Privacy Law3 established “the central principle of the right to be forgotten,”4 providing that “[e]very data subject can . require the data controller to rectify, complete, update, lock out 1 I am deeply grateful for the research assistance of Jeremy Buotte, Conor Clark, Nina Cohen, Samir Doshi, Jean- Philippe Foegle, Jesse Hogin, Bryn Lese, Bernat Torok, and Andrew Udelsman. I am fortunate indeed to have received helpful and constructive advice from Jack Balkin, Eduardo Bertoni, Frederik Zuiderveen Borgesius, Pablo Salvador Coderch, Jennifer Daskal, Anuj Desai, David Erdos, Krzysztof Garstka, Dieter Grimm, Amy Kapczynski, Daphne Keller, Leslie Kendrick, Antoni Rubi Puig, Artemi Rallo, Jeffrey Rosen, Timo Ruikka, Reva Siegel, Daniel Solove, Alexander Tsesis, and Eugene Volokh. Thanks also to my friend and guide, Paul Schwartz, without whom this never would have been written. 2 Daniel H. Flaherty, Governmental Surveillance and Bureaucratic Accountability: Data Protection Agencies in Western Societies, 11 SCI. TECH. & HUM. VALUES 7, 8 (1986). “The West German state of Hesse passed the first general data protection law in 1970,” followed by “Sweden (1973); United States (1974); Federal Republic of Germany (1977); Canada (1977); France (1978); and the United Kingdom (1984).” Id. at 7–8. “The influential [1981] OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data summarize the basic principles for national application in the following terms: collection limitation, data quality, purpose specification, use limitation, security safeguards, openness, individual participation, and accountability.” Id. at 8. 3 Loi No. 78-17 du 6 janvier 1978 relative à l’informatique, aux fichiers et aux libertés [Law 78-17 of January 6, 1978 on Information Technology, Data Files and Civil Liberties], JOURNAL OFFICIEL DE LA REPUBLIQUE FRANÇAISE [J.O.] [OFFICIAL GAZETTE OF FRANCE], Jan. 7, 1978, p. 227. 4 DAVID H. FLAHERTY, PROTECTING PRIVACY IN SURVEILLANCE SOCIETIES: THE FEDERAL REPUBLIC OF GERMANY, SWEDEN, FRANCE, CANADA, AND THE UNITED STATES 180 (1989). Writing in 1989, Flaherty praised the right to be forgotten as of “inestimable importance for data protection in every country.” Id. at 210. He listed “[t]he right to be forgotten, including the ultimate anonymization or destruction of almost all personal information,” in his table of “Data Protection Principles and Practices for Government Personal Information Systems.” Id. at 380 tbl.7. 2 or erase personal data relating to him or her, where the data is inaccurate, incomplete, ambiguous, expired, or whose collection, use, communication or storage is forbidden.”5 Fair information practices were consolidated in the EU in 1995 with the adoption of Directive 95/46/EC6 (Directive), which “is probably the most influential data privacy text in the world.”7 The Directive requires Member States to protect the privacy of “data subjects” by enacting laws that require personal data be “collected [only] for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes”; that the processing of data be “adequate, relevant and not excessive in relation to the purposes for which they are collected”; that personal data be maintained accurately and “kept up to date”; and that personal data be “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.”8 The Directive provides that data subjects can rectify, erase, or block the use of data processed in ways that violate its requirements.9 A decade after the promulgation of the Directive, the EU entrenched its commitment to data privacy by ratifying Article 8 of the Charter of Fundamental Rights of the European Union 5 Law of 78-17 of Jan. 6, 1978, art. 40 (Fr.). “The Computer, which has a power and memory so superior to man, must be made to forget.” FRENCH NATIONAL COMMISSION ON INFORMATICS AND FREEDOMS, REPORT 98 (1980–81). 6 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of such Data, 1995 O.J. (L 281) 31 (EC) [hereinafter Directive]. The Directive was designed to implement the Council of Europe Data Protection Convention of 1981. Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data, Jan. 1, 1981, E.T.S. No. 108. 7 Stefan Kulk & Frederik Zuiderveen Borgesius, Privacy, Freedom of Expression, and the Right To Be Forgotten in Europe, in CAMBRIDGE HANDBOOK OF CONSUMER PRIVACY (Jules Polonetsky, Omer Ten & Evan Selinger eds., forthcoming 2017) (manuscript at 14), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2652171. 8 Directive, supra note 6, at 40. 9 Id. at 42. 3 (Charter),10 which came into effect with the 2009 Treaty of Lisbon.11 Article 8 is entitled “Protection of Personal Data,” and it provides that: 1. Everyone has the right to the protection of personal data concerning him or her. 2. 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. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. 3. Compliance with these rules shall be subject to control by an independent authority.12 Article 8 codifies the essence of fair information practices and in effect mandates that they be enforced by independent data protection agencies. Although there was always a potential contradiction between data privacy and freedom of expression, that tension remained largely latent until it burst into public view in 2014 when the Court of Justice of the European Union (CJEU) decided the monumental case of Google Spain SL v. Agencia Española de Protección de Datos .13 The CJEU held that the Directive, as well as 10 Charter of Fundamental Rights of the European Union art. 8, December 7, 2000, 2000 O.J. (C 364) 1, 10 [hereinafter Charter]. 11 See Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing European Community, Dec. 13 2007, 2007 O.J. (C 306) 1 [hereinafter Treaty of Lisbon]. The Consolidated Version of the Treaty on the Functioning of the European Union, 2012 O.J. (C 326) 47 reiterates: 1. Everyone has the right to the protection of personal data concerning them. 2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall lay down the rules relating to the protection of individuals with regard to the processing of personal data by Union institutions, bodies, offices and agencies, and by the Member States when carrying out activities which fall within the scope of Union law, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of independent authorities. Id.at 55. 12 Charter, supra note 10, at 10. 13 Case C-131/12, Google Spain SL v. Agencia Española de Protección de Datos, 2014 E.C.R. 317. For a discussion of previous tension between data protection laws and new digital media, see David Erdos, Data Protection Confronts Freedom of Expression on the “New Media” Internet: The Stance of European Regulatory Authorities, 40 EUR. L. REV. 531 (2015). 4 Articles 714 and 8 of the Charter, authorize a “data subject” to 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 . he wishes it to be ‘forgotten’ after a certain time.”15 Google Spain did not focus on the processing of personal data collected by the Google search engine (“Google”) from its own customers.16 It instead applied the right to be forgotten to constrain Google’s public communication of public information. Insofar as Google Spain relied on Article 8 and the Directive, the decision vastly expanded the reach of fair information practices. This expansion was reaffirmed in April 2016 when the EU promulgated the General Data Protection Regulation (GDPR),17 which will become the law of all EU member states on May 25, 2018.18 The GDPR replaces the Directive and contains a right to be forgotten that will 14 Article 7 is entitled “Respect for private and family life,” and it provides that “Everyone has the right to respect for his or her private and family life, home and communications.” Charter, supra note 10, at 10. 15 Google Spain, 2014 E.C.R. 317, para. 89. See id. at para. 99. In January 2012, the European Commission had proposed to the European Parliament fair information practices that included a “Right to be forgotten and to erasure,” essentially based upon the French right to be forgotten described in supra note 3 and accompanying text. See Proposal for a Regulation of the European Parliament and of the Council on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data (General Data Protection Regulation), art.
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