Google Spain and the Right to Freedom of Expression

Google Spain and the right to freedom of expression Does the Google Spain judgement interfere with the right to freedom of expression, and if so, is it the least restrictive intervention?

Master thesis Law & Technology Name: Jalisa Daane, ANR: 562444 Supervisor: N. Purtova

Table of contents

Chapter 1: Introduction ...... 4 1.1 Background ...... 4 1.2 Google Spain and the freedom of expression ...... 5 1.3 Significance ...... 6 1.4 Method ...... 6 1.5 Overview of chapters ...... 6 Chapter 2: Google Spain judgement ...... 7 2.1 Introduction ...... 7 2.2 Facts and procedural history ...... 7 2.3 Questions before the court ...... 8 2.4 Considerations of the court ...... 8 2.4.1. Substantive scope directive ...... 8 2.4.2 Territorial scope ...... 9 2.4.3 Scope of the data subject’s rights guaranteed by Directive 95/46 ...... 9 2.5 Guidelines Article 29 Working Party ...... 10 2.5.1 Transparency ...... 11 2.5.2 Publisher notification ...... 12 2.5.3 Global Protection...... 12 Chapter 3: State of the academic debate ...... 13 3.1 Freedom of expression ...... 13 3.1.1 Rotenberg - The Right to Privacy is Global...... 14 3.1.2 Simpson - Restore 'Privacy by Obscurity' ...... 15 3.1.3 Zittrain - Europe's Bad Solution to a Real Problem ...... 15 Chapter 4: Balancing fundamental rights ...... 17 4.1 Limitations of human rights ...... 17 4.2 The requirements for a justified interference under the ECHR ...... 17 4.2.1 In accordance with the law ...... 18 4.2.2 Pursuing a legitimate aim ...... 18 4.2.3 Necessary in a democratic society ...... 18 4.3 Jurisprudencial framework ECtHR ...... 19 4.3.1 Von Hannover II ...... 19 4.3.2 Axel Springer vs. Germany ...... 23 4.4 The conditions for lawful limitations under the EU Charter ...... 25

4.5 Margin of appreciation ...... 25 4.5 Conclusion ...... 26 Chapter 5: Implications for the right to freedom of expression ...... 27 5.1 Interference with the right to freedom of expression ...... 27 5.2 Legitimacy of the interference ...... 29 5.3 Search engine operators in the role of the judge...... 30 5.4 No media exception for search engines ...... 31 5.5 Further developments ...... 31 5.5.1. Google’s reaction ...... 31 5.5.2 Illustration: First Dutch search engine judgement ...... 33 5.5.3 Article 29 Working Party ...... 34 5.6 Conclusion ...... 35 Bibliography ...... 40

Chapter 1: Introduction

1.1 Background As stated by the Advocate-General in his opinion in the Google Spain case, the importance of protection of personal data is growing.1 However, Google Spain2 is the first case in which the Court of Justice of the European Union (hereinafter: CJEU) was asked to explain the Directive3 in the context of internet search engines.4 The Google Spain case beholds a preliminary question that is done by the Audiencia Nacional (the highest Court of Spain) in a dispute between Google Spain, S.L. and Google Inc. (hereinafter: Google) on the one hand and the Agencia Española de Protección de Datos (Spanish Data Protection Authority, hereinafter: AEPD) and the Spaniard Mario Costeja González on the other. With its preliminary ruling the CJEU created what has been called “the right to be forgotten”. In the literature this ruling has led to a lot of criticism. Many authors believe that the CJEU, by putting privacy first, disregarded the jurisprudencial framework of the European Court of Human Rights (hereinafter: ECtHR) with regard to the balancing of privacy interests against the freedom of expression.5 Therefore the central research question of this master thesis is stated as follows: Does the Google Spain judgement really interfere with the right to freedom of expression, and if so, if it is the least restrictive intervention?

Although the right to be forgotten became a central element of the debate over privacy versus freedom of expression only in the last few years, given the intent of the European Commission to impose a new Data Protection Regulation, as well as the ruling of the CJEU in the Google Spain case, the concept of a right to be forgotten is nothing new, especially under consideration of national laws of the Member States of the European Union.6 From a historic perspective the right to be forgotten is fundamentally connected with the French concept of right to oblivion (droit a l’oubli).7 In legal history two different versions of the right to be forgotten can be distinguished, namely (1) the right for criminals who had served their sentences and did not want to be associated anymore with their criminal past. The right to access information from the public had to be balanced with the right to privacy from the individual 8 and (2) the right to oblivion was also being distinguished as a more precise right to erasure, whereas it grants the individual the right that data, which was disclosed passively, is deleted.9

1 Opinion A-G Jääskinen CJEU 13 May 2014, C-131/12, ECLI:EU:C:2013:424 (Google Spain) par. 2. 2 CJEU 13 mei 2014, C-131/12, ECLI:EU:C:2014:317 (Google Spain). 3 Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (PbEG L281/31). 4 Opinion A-G Jääskinen Google Spain (supra note 2), par. 7. 5 For example: ECtHR 7 February 2012, appl.no. 39954/08 (Axel Springer AG/Duitsland); ECtHR 7 February 2012, appl.no. 40660/08 en 60641/08 (Von Hannover/Duitsland); ECtHR 16 July 2013, appl.no. 33846/07 (Wêgrzynowski en Smolczewski/Polen). 6 Van Hoboken 2013, p. 2-3. 7 Ambrose and Ausloos 2013, p. 2. 8 Ibid. 9 Ambrose and Ausloos 2013, p. 2.

The most important legal act which governs the current European data protection regime is the Data Protection Directive 95/46/EC issued by the European Parliament and the European Commission on 24 October 1995.10 Despite the fact that the contemporary European legal framework does not explicitly mention a right to be forgotten, several provisions can be interpreted as 'diluted right to be forgotten provisions'.11

Article 17 of the 2012 draft European Data Protection Regulation entails the "right to be forgotten and to erasure".12 Under Article 17 individuals to whom the data appertains are granted the right to "obtain from the controller the erasure of personal data relating to them and the abstention from further dissemination of such data, especially in relation to personal data which are made available by the data subject while he or she was a child or where the data is no longer necessary for the purpose it was collected for, the subject withdraws consent, the storage period has expired, the data subject objects to the processing of personal data or the processing of data does not comply with other regulation".13

1.2 Google Spain and the freedom of expression In his opinion the Advocate-General noted that the case also gives rise for a fundamental balance between the rights of protection privacy and the protection of personal data (Articles 7 and 8 Charter Fundamental Rights) on the one hand and the right to freedom of expression (Article 11 Charter of Fundamental Rights) and the freedom to conduct a business (Article 16 Charter of Fundamental Rights) on the other.14

The Court must find a right balance between the right to freedom of speech; the legitimate interest of the audience - Internet users - and the right to privacy of the persons involved.15 The Court looks at the issue of removal of search results from the perspective of privacy protection. This delivers in the reasoning of the Court, focus on the right to privacy and the protection of personal data. The Court states that privacy goes first on to the other interests, without searching for a balance.16 Hereby, the Court does prejudice to the case law of the ECtHR which sets the ECHR 'as a matter of principle thesis deserve equal rights respect.'17 The ECHR has developed a detailed and nuanced framework when such considerations have to be made.18

10 Smętek and Warso 2012, p. 1-2. 11 Ambrose and Ausloos 2013, p. 7. 12 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, 'GDPR'), European Commission, 2012, Article 17 "Right to be forgotten and to erasure". 13 Article 17 "Right to be forgotten and to erasure" GDPR. 14 Opinion A-G Jääskinen bij Google Spain (supra note 2), par. 134. 15 CJEU Google Spain, par. 36-38 and 80-81. 16 CJEU Google Spain, par. 100 under 4. 17 ECtHR 7 februari 2012, appl.no. 39954/08 (Axel Springer AG/Duitsland), par. 87. 18 For example: ECtHR 7 February 2012, appl.no.39954/08 (Axel Springer AG/Duitsland); EHRM 7 February 2012, appl.no. 40660/08 en 60641/08 (Von Hannover/Duitsland); ECtHR 16 juli 2013, appl.no. 33846/07 (Wêgrzynowski en Smolczewski/Polen).

With the qualification of the search engine operator as responsible in relation to the processing of personal data on the source pages of third parties the Court bears the operator's task to weigh the fundamental rights. The Court might had a better alternative, namely to allow the search engine-operators to take advantage of the media-exception from Article 9 of the Directive. Member States could then provide for exceptions in their national legislation to find a balance between freedom of expression and the protection of personal data. The CJEU does exclude this expressly.19

1.3 Significance The CJEU held in the Google Spain judgement that persons concerned have, under certain conditions, the right to remove search results in response of the search on their name.20 This judgement has rendered a lot of criticism and differing opinion from academics all over the world. Many authors state that the judgement includes an attack on the freedom of expression or that the CJEU should have followed the line of the ECtHR when balancing the right to privacy against the freedom of expression. Other authors state that the judgement is not such a ’big deal’ and actually may be a good thing for freedom on the internet.21 This thesis will critically assess the existing literature in order to bring clarity to whether the judgement of the CJEU in the Google Spain case really invokes on the freedom of expression.

1.4 Method A method of doctrinal legal analysis will be used to answer the research question.22 This means that to obtain answers to the research question, in particular laws and regulations, official publications, jurisprudence and literature of subject-related journals are consulted. As important relevant legal principles and concepts come from European and international laws and regulations, legislation at this level is studied. Jurisprudence from the Court of European Justice (CJEU) and the European Court for Human Rights (ECtHR) explaining these concepts will also be discussed.

1.5 Overview of chapters Chapter 2 will introduce the Google Spain judgement in further detail, considering especially the considerations of the CJEU with regard to the right to freedom of expression. In Chapter 3 the state of the academic debate will be assessed. Whereas Chapter 4 explains the legal framework developed by the ECtHR in light of balancing freedom of expression with the right to protection of personal data. In Chapter 5 I will analyze the approach taken by the Court in Google Spain and assess if it is consistent with the case- law of the ECHR. Chapter 6 concludes by stating an answer to the research question.

19 CJEU Google Spain , par. 85. 20 CJEU Google Spain, par. 94. 21 See for an overview of academic reactions to the Google Spain-judgement the following website: http://www.cambridge-code.org/googlespain.html (consulted on 27-07-2016). 22 Hutchinson and Duncan 2012, p. 84-85.

Chapter 2: Google Spain judgement

2.1 Introduction This chapter introduces the Google Span judgement in further detail. Firstly, the facts and procedural history of the Google Spain case will be stated. Thereafter the three questions, asked by the Spanish court, for reference of a preliminary ruling by the CJEU will be discussed. The emphasis will lay on the third question (‘right to be forgotten’).

2.2 Facts and procedural history The actual facts of the Google Spain case are not complicated. La Vanguardia Ediciones SL (hereinafter: La Vanguardia), a daily Spanish newspaper with a large circulation in Catalonia, published two notices of an auction in respect of the property of Mario Costeja González for unpaid debts in 1998. Subsequently Mario Costeja González paid the debts and the property was never auctioned. The announcements were, however, also published in the online version of the newspaper and about ten years later Google searches on his name brought up links to two pages of La Vanguardia’s newspaper from 19 January and 9 March 1998 stating the two notices of public sale of real estate to recover social security debts.23

Because of the harm to his reputation Mario Costeja Gonzales brought an enforcement complaint before the AEPD, the Spanish privacy regulator. He requested, first, that La Vanguardia be required either to remove or alter those pages 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, that Google would be required to hide or remove this publication from the online archive when searched on his name. He stated that the herd for some time was completely handled and that the entry in the search index now had lost all relevance.24 The AEPD rejected his complaint in so far as it related to La Vanguardia, because of the fact that the publication of 1998 was justified by order of the Ministry of Labour and Social Affairs to gain publicity in order to achieve as much bidders as possible. 25 On the other hand, the AEPD ruled that Google, being an operator of a search engine had to subject to the data protection legislation. According to the AEPD there is a direct obligation to remove personal data for the search engine operator.26

Google appealed to the Audiencia Nacional (Spanish National High Court) which referred questions on the interpretation of the Privacy Directive to the CJEU.27

23 The original publication can be found on the website off La Vanguardia: hemeroteca.lavanguardia.com/preview/1998/01/19/pagina-27/33842001/pdf.html.6 24 CJEU Google Spain, par. 15. 25 CJEU Google Spain, par. 16. 26 CJEU Google Spain, par. 17. 27 CJEU Google Spain, par. 19 - 20.

2.3 Questions before the court The National High Court asked three categories of questions: one on the territorial scope of the directive, one on the substantive scope (the legal qualification the activity of the search engine) and one on the scope of the right of disposal and/or opposition to the processing of the personal data.28 The first two questions will only be briefly touched upon, whereas the third question is the most important one with regard to this thesis’ aim. The third question reads as follows:

'must it be considered that the rights to erasure and blocking of data, provided for in Article 12(b), and the right to object, provided for by [subparagraph (a) of the first paragraph of Article 14] of Directive 95/46, extend to enabling the data subject to address himself to search engines in order to prevent indexing of the information relating to him personally, published on third parties’ web pages, invoking his wish that such information should not be known to internet users when he considers that it might be prejudicial to him or he wishes it to be consigned to oblivion, even though the information in question has been lawfully published by third parties?'29

2.4 Considerations of the court 2.4.1. Substantive scope directive The CJEU first considered whether Google’s activities fell within the scope of the Data Protection Directive (hereinafter: DPD). Google had argued that the activity of search engines cannot be regarded as processing of personal data, because search engines do not distinguish between personal data, protected by the DPD, and other data.30 Furthermore Google stated that it had no control over the data or the selection of the data.31 They therefore did not ‘determine […] the purposes and means of the processing of personal data’ as required by the terms of the DPD.32 The CJEU did not accept these arguments. First of all it was not contested that the data which was processed included ‘personal data’ within the meaning of the DPD.33 The fact search engine operations also process non-personal data is irrelevant, as is the fact that the search engine results consists of material that has already been published and is unaltered by the search engine, even where that publication was by the media.34 Therefore the CJEU found that ‘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’.35 The CJEU emphasised that a broad definition must be given to ‘controller’ to ensure complete protection for data subjects. In assessing this, the CJEU looked not only to

28 CJEU Google Spain, par. 20. 29 CJEU Google Spain, par. 20 under 3. 30 CJEU Google Spain, par. 22. 31 Ibid. 32 Article 2 sub c Data Protection Directive 95/46/EC. 33 Within the meaning of Article 2(a) Data Protection Directive 95/46/EC. 34 CJEU Google Spain, par. 29-30. 35 CJEU Google Spain, par. 28-29.

8 what Google does in terms of the organisation of the search engine but also the impact of the search engine on linking individuals to results. The CJEU concluded that Google’s activities meets the requirements of the DPD and therefore fall within the scope of the DPD.36

2.4.2 Territorial scope The question with regard to the territorial scope of the DPD can be answered in two ways. On the one hand you could argue that Google’s activities fell within Article 4(1)(a) which applies the DPD to those with an ‘establishment’ in a Member State. On the other hand you can base the answer on Article 4(1)(c) which concerns the ‘use of equipment situated on the territory of the said Member State’. The Advocate General Jääskinen went in his opinion for the first possibility. He suggested that although the processing is carried out by Google in the USA, Google still had an establishment in Spain which , although not processing data, constituted an important element in Google’s business model by selling advertising thereby satisfying the requirement that the processing be ‘carried out in the context of the activities’ of the EU establishment.37 The CJEU seems to follow broadly the same line of argumentation, again emphasizing the purpose of the DPD and the need to protect privacy.38 The CJEU concluded:

'the activities of the operator of the search engine and those of its establishment situated in the Member State concerned are inextricably linked since 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.'39

2.4.3 Scope of the data subject’s rights guaranteed by Directive 95/46 The CJEU then turned to whether the Spaniard Mr. Costeja González had the right to ask for the information to be removed from the search results. The CJEU noted that – subject to limited exceptions – all data processing must first comply with the principles relating to data listed in Article 6 DPD and, secondly, with one of the criteria for making data processing legitimate set out in Article 7 DPD.40 Article 7 DPD 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 those interests are overridden by the interests or fundamental rights and freedoms of the data subject. By reasoning like this, the CJEU made the exercise one of balance, but bearing in mind the status of the individual’s rights as fundamental rights.41 The CJEU once again highlighted the reach and impact of the Internet and of search engines in structuring information.42

36 CJEU Google Spain, par. 38. 37 Opinion A-G Jääskinen Google Spain, par. 60-68. 38 CJEU Google Spain, par. 53-54. 39 CJEU Google Spain, par. 56. 40 CJEU Google Spain, par. 71. 41 CJEU Google Spain, par. 74. 42 CJEU Google Spain, par. 81.

The CJEU added that given the structuring function of a search engine, it may have more impact than just a first publication on a web page.43 On this grounds, a search engine operator could maybe be obliged to remove information. The CJEU took a similar approach with regard to the rights set out in Articles 12(b) and 14(a) DPD, which concerned the right to be forgotten. It held that:

‘having regard to the sensitivity for the data subject’s private life of the information … 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’.44

The CJEU ruled that people have the right to remove search results for searches on their name when those search results are "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".45

2.5 Guidelines Article 29 Working Party The Article 29 Working Party consists of representatives of the national data protection authorities (DPA’s) in the EU, the European Data Protection Supervisor (EDPS) and the European Commission.46 One of the main tasks of the Article 29 Working Party is to promote the uniform application of the Directive 95/46 (DPD) in the European Economic Area (EEA; all Member States of the EU, as well as in Norway, Liechtenstein and Iceland).47 In light of this task the Article 29 Working Party issued guidelines on how the Google Spain ruling should be implemented.48

The document contains a general interpretation of the judgment and practical criteria to ensure a consistent handling of complaints. Although everyone has the right to data protection under European law, regulators will focus on complaints where there is a link between the person concerned and the EU, such as a resident or national of an EU Member State. The complaints will be treated as a formal complaint under Article 28, paragraph 4 of the Directive.

The Article 29 Working Party casts aside the terminologically problematic term ‘right to be forgotten’ by reaffirming the existence of a “right to be delisted”.49 Besides of that, search engines are not being forced

43 CJEU Google Spain, par. 80. 44 CJEU Google Spain, par. 98. 45 CJEU Google Spain, par. 94. 46 European Data Protection Supervisor, 'Article 29 Working Party', EDPS available at: https://secure.edps.europa.eu/EDPSWEB/edps/site/mySite/Art29 (consulted on 27-07-2016). 47 Ibid. 48 Article 29 Working Party, 'Guidelines on the implementation of the Court of Justice of the European Union judgement on "Google Spain and inc v. Agencia Espanola de Protection de Datos (AEPD) and Mario Costeja Gonzalez' C-131/12", adopted on 26 November 2014. 49 J. Auslous and B. Van Alsenoy, 'Implementing the "right to be forgotten" the Article 29 Working Party speaks up', London School of Economics and Political Science (LSE), available at:

10 to proactively evaluate 'all the information they process, but only when they have to respond to data subjects’ requests'. Those request from subjects have to met certain conditions and can only relate to the delisting of specific name-based search results. The source page to which the search results of a search engine refer are not affected by the exercising of the right to be forgotten. The original content remains available online and can be assessed through other search terms. Search engine providers are advised to place a general observation on their website that can be missing search results related to data protection. Lastly, the Article 29 Working Party emphasizes that the right to be forgotten has a limited scope and that there is a need to strike a fair balance between the rights and interests at stake.

The Article 29 Working Party concerns that a fair balance must been struck between the right to privacy of an individual and the right to access information from the public. Contrary to the CJEU, the Article 29 Working Party does refer explicitly to the right to receive information (which falls under article 11 of the EU Charter of Fundamental Rights), which acts as a counter-weight to the right to privacy and data protection. Furthermore, the working group made thirteen specific criteria based on a preliminary analysis of complaints received so far. These criteria are used in determining whether it is acting in accordance with data protection legislation, but are not mandatory. The criteria will be applied in accordance with national legislation and should be seen as a flexible tool. Each criterion must be applied in light of the principles laid down by the Court and specifically in light of the public interest in access to information.50

Some practical issues, such as transparency, publisher notification and global protection, are also outlined by the Article 29 Working Party.

2.5.1 Transparency Soon after the court ruling Google has created an online form where people can submit a removal request. Within one year Google removed more than 250 000 search results upon request. An international group of researchers sent an open letter51 to Google asking to make more information available about the decisions taken by the internet company to remove these requests.52 Answering to this open letter the Article 29 Working Party states that website operators need not be informed of the removal of the link to their website. Such communication is even, in many cases, processing of personal data and is not legitimate without a legal basis. The Article 29 Working Party, however, encourages the search engine providers to make available the criteria to be applied in the treatment of removal requests.

http://blogs.lse.ac.uk/mediapolicyproject/2014/12/03/implementing-the-right-to-be-forgotten-the-article-29-working- party-speaks-up/ (consulted on 27-07-2016). 50 Guidelines Article 29 Working Party 2014 (supra note 71), p. 5 and p. 12 – 20 (Part II). 51 J. Kiss, 'Dear Google: open letter from 80 academics on 'right to be forgotten', The Guardian, 14 May 2015, available at: https://www.theguardian.com/technology/2015/may/14/dear-google-open-letter-from-80-academics-on-right-to-be- forgotten (consulted on 27-07-2016). 52 S. Kulk, 'Beste Google, vertel ons meer wat je verwijdert', Ucall , 15 May 2015, available at: http://blog.ucall.nl/index.php/2015/05/beste-google-vertel-ons-meer-over-wat-je-verwijdert/ (consulted on 27-07-2016).

2.5.2 Publisher notification Publisher notification could help to safeguard the access to information. If a publisher is notified before a search engine provider decides upon a removal request, the publisher will be able to give arguments as to why a search engine provider should not delist the specific search result. The Working Party states that publisher notification should only take place when it is necessary to obtain a proper understanding about the circumstances of a “particularly difficult” case.

2.5.3 Global Protection Besides, it is particularly important to the effectiveness of the EU data protection law can not be circumvented. This means that the required removal of the relevant data must be realized in all relevant domains, including .com domains. The argument that Internet users generally will search through their national domains provides insufficient protection of personal data.

Chapter 3: State of the academic debate

This chapter focuses on the different responses from academia following the Google Spain judgement. This chapter discusses some relevant different viewpoints.

3.1 Freedom of expression At first Orla Lynskey, professor at the Faculty of Law of Cambridge, stated that Google’s business model would be affected by the CJEU judgement and notice and take-down would become default.53 Shortly afterwards, Lynskey came back from her original viewpoint.54 She repeated her viewpoint in favor of the 'right to be forgotten' during a conference held at the Faculty of Law, University of Cambridge on 27 March 2015 about "EU Internet Regulation After Google Spain".55 Lynskey says that the case law prior to the decision of the CJEU in Google Spain was consistent with the eventual ruling. The CJEU has consistently given a broad scope of application to data protection. Korenhof agrees with her that the decision follows from data protection law.56 Besides, the CJEU has been increasingly reliant on the EU Charter and the court has been taking stances with potential significant political consequences (the CJEU ‘emboldened’).57

Some criticasters argue that the General Data Protection Regulation58 does not provide a framework on how freedom of expression and media should be protected in practice. Although Article 21 of that Regulation refers to the Charter of Fundamental rights and the European Convention for the Protection of Human rights and Fundamental Freedoms, which explicitly protect freedom of expression.59

In Recital 121 GDPR it is specified that 'personal data solely for journalistic purposes, or for the purposes of artistic or literary expression should qualify for exemption from the requirements of certain provisions'60 However, this Recital does not make clear how to define what purpose can be seen as 'journalistic, artistic or literary.' Therefore Recital 121 GDPR states that Member States have to classify activities as journalistic, if the object of the activities is the 'disclosure to the public of information, opinions or ideas'.61

In December 2014, about six months after the CJEU ruling in the Google Spain judgement, the US News Debate Club organized a debate about the right to be forgotten (hereinafter: RTBF). During this debate six

53 O. Lynskey, 'Rising like a Phoenix: The ‘Right to be Forgotten’ before the ECJ', European Law Blog, 13 May 2014, available at: from http://europeanlawblog.eu/?p=2751 (consulted on 27-07-2016). 54 M. Leiser, 'Google judgement causes problems for advertisers, legal expert warns', The Drum, 19 May 2014 available at: http://www.thedrum.com/opinion/2014/05/19/google-judgement-causes-problems-advertisers-legal-expert-warns (consulted on 27-07-2016). 55 O. Lynskey, 'The Pathway to Google Spain', University of Cambridge, 14 April 2015, available at: http://sms.cam.ac.uk/media/1952125 (consulted on 27-07-2016). 56 P. Korenhof, 'Beslissing Hof over Google begrijpelijk, Univers, 16 May 2014, available at: https://universonline.nl/2014/05/16/beslissing-hof-over-google-begrijpelijk (consulted on 27-07-2016). 57 O. Lynskey, 'The Pathway to Google Spain', University of Cambridge, 14 April 2015, available at: http://sms.cam.ac.uk/media/1952125 (consulted on 27-07-2016). 58 Article 21 GDPR. 59 K. Larsen 2013, p. 2. 60 Paragraph 121 GDPR. 61 Ibid.

13 contributors, for and against the RTBF, stated their opinions. 62 Marc Rotenberg, the president of the Electronic Privacy Information Center and a former chair of the Public Interest Registry (which manages the .org domain), won the poll with his argumentative article in favor of the RTBF. 63 In this part the arguments of Rotenberg, Simpson (both in favor of the 'right to be forgotten') and Zittrain (also in favor of the 'right to be forgotten', but with some scepticism) will be reviewed.

3.1.1 Rotenberg - The Right to Privacy is Global Rotenberg states that the decision of the CJEU was hardly surprising. Already before the judgement Google removed links, for example, with regard to private credit card and bank account information. Besides of those removals, Google also frequently removes links to information that is protected by copyright law. Despite of the fact that Google and critics stated that it would be impossible to remove all those links following the requests to be forgotten, the Internet is still operating and Google and other search companies have managed to comply with the requests.

Rotenberg sees a problem, however, because Google is not applying the RTBF globally. This means that if Google receives a request from a French citizen, Google will remove the links only from the Google.fr domain. Meaning that the personal data will still be available to internet users using another Google domain. According to Rotenberg this is a peculiar approach. The right to privacy should be a global right. Remarkably, Google does not address the personal data/ privacy problem elsewhere by only removing links from search provided for only one country. The proposed solution is simple: Google should not distinguish between countries but remove all links on all domains when requested to do so.

This does not result in a mandate for all Internet users to remove links that contain personal data. The CJEU said only that commercial search engine operators, companies that profit from providing links to the content of others through the placement of advertising, carry the responsibility. Moreover, the ruling ultimately defends press freedom because the original material is not delisted, just the search result is.64 The obligation to remove does not applies to the underlying content, but only to remove the links posted by the search engine operator. Search engine operators are not above the law or ethical responsibilities and just because personal data can be found on the Internet does not mean that this data should also be made widely available.

62 US News Debate Club, 'Should There Be a 'Right to be Forgotten' on the Internet?' , 5 December 2014, available at: http://www.usnews.com/debate-club/should-there-be-a-right-to-be-forgotten-on-the-internet?words&src=usn_tw (consulted on 27-07-2016). 63 M. Rotenberg, 'The Right to Privacy Is Global', US New, 5 December 2014, available at: http://www.usnews.com/debate-club/should-there-be-a-right-to-be-forgotten-on-the-internet/the-right-to-privacy-is- global (consulted on 27-07-2016). 64 M. Rotenberg, 'Google's position makes no sense: Opposing view', USA Today, 22 January 2015, available at: http://www.usatoday.com/story/opinion/2015/01/22/google-eu-electronic-privacy-information-center-editorials- debates/22186841/ (consulted on 27-07-2016).

3.1.2 Simpson - Restore 'Privacy by Obscurity' John Simpson is a consumer advocate for Consumer Watchdog and the director of the organization’s Privacy Project. According to Simpson the RTBF needs to be seen as ‘an important way to protect privacy in the digital age’. 65 Simpson believes that the authors who write negatively about the RTFB do not understand what the RTFB actually entails. The RTFB cannot be seen as censorship, but a restoring of balance between the ‘right to know’ and privacy. Simpson referred to this balancing as ‘privacy by obscurity’. Same as Rotenberg Simpson emphasizes that the original published article is; it remains on the Internet and is not removed or altered. The article can still be accessed in a search using other search terms. Of importance is also that the removal is not automatic. The CJEU ruled that in the making the decision to remove a link there will need to be a balance between the individual’s privacy and public’s right to know.

The transparency report that Google issued in October 2014 (and has been kept up to date)66 shows that a sensible balance between privacy and the right to know can be found, since not all requests were granted. In total Google received 424,527 requests involving 1,481,156 URLs from which 537,121 URLs (42.8%) were removed, the other 718,328 URLs (57.2%) were not removed.67

Simpson concludes with stating that the RTBF offers a clear path forward to help protect our privacy in the digital age. Americans deserve the same RTBF that is now being invoked in Europe. Apparently, Americans are also not so reluctant to the RTBF as often thought. The company Software Advice, Inc. carried out a poll in early September 2014 and found that 61 percent of Americans "believe some version of the right to be forgotten is necessary." Thirty-nine percent "want a European-style blanket right to be forgotten, without restrictions." And 47 percent were "concerned that 'irrelevant' search results can harm a person’s reputation."68 Companies like Google that repeatedly claim to care about users’ privacy should be ashamed that they are not treating people on both sides of the Atlantic the same way.

3.1.3 Zittrain - Europe's Bad Solution to a Real Problem Jonathan Zittrain is professor of law and professor of computer science at Harvard University, and co- founder of its Berkman Center for Internet & Society. Zittrain is not entirely for the RTBF, but also not really against the RTBF. He supports such a right in theory, only he finds the solution chosen by the CJEU not the right one.69

65 J. Simpson, 'Restore Privacy by Obscurity', US News, 5 December 2014, available at: http://www.usnews.com/debate-club/should-there-be-a-right-to-be-forgotten-on-the-internet/restore-privacy-by- obscurity (consulted on 27-07-2016). 66 Google, 'European privacy requests for search removals', last updated 26 July 2016, available at: https://www.google.com/transparencyreport/removals/europeprivacy/?hl=en (consulted on 27-07-2016). 67 Ibid. 68 Software advice, 'US Attitudes Toward the 'Right to Be Forgotten', 2014, available at: http://www.softwareadvice.com/security/industryview/right-to-be-forgotten-2014/ (consulted on 27-07-2016). 69 J. Zittrain, 'Europe's Bad Solution to a Real Problem', US News, 5 December 2014, available at:. http://www.usnews.com/debate-club/should-there-be-a-right-to-be-forgotten-on-the-internet/europes-bad-solution-to- a-real-problem (consulted on 27-07-2016).

Firstly, the person making the request can appeal if, for example, the search engine operator rejects the request for removal. Missing is, however, some sort of parallel mechanism to appeal when the search engine operator grants a request for anyone else than the requester, such as the affected website. Besides, a granted request results in a permanent removal. One could imagine that changing circumstances could make a granted removal no longer desirable or even allowed. For instance, the requester might become a public figure, making previously irrelevant information highly relevant.

Websites that are affected should be able to appeal to search engine takedowns through a formal path. Zittrain also proposes that the granting of a delisting request should be for a limited time. Before the expiration of the granted delisted search result the requester will get the opportunity to anew his request.

On the other hand the delisted results are not reported and only visible on the affected website. This bothers analyzing how the new right to be forgotten is being invoked and granted. According to Zittrain it should be possible for researchers to study granted requests (delisted search results), with respect to the privacy of the subjects, in order to find out when a request is being granted or denied and how the right is evolving.

Chapter 4: Balancing fundamental rights

The right to freedom of expression (article 10 ECHR) and the right to respect for private and family life, home and correspondence (article 8 ECHR) are not absolute rights. This means that when those individual rights conflict with the general interest or with rights of other individuals they must be balanced and if necessary restricted. The CJEU had to balance the right to freedom of expression and the right to respect for private and family life, home and correspondence against each other in the Google Spain case. According to the CJEU the right to privacy prevailed. This chapter explains the detailed and nuanced framework developed by the ECtHR when balancing fundamental rights. Analyzing this framework will be of importance to obtain an answer to the question if the CJEU judgement interferes with the right to freedom of expression and if so, if this interference can be justified.

4.1 Limitations of human rights Some human rights must be guaranteed by the State at all time, they can therefore be identified as absolute rights. An example forms the right to remain safe from torture, as laid down in article 3 ECHR. Balancing against other rights or other interests (for instance the fight against terrorism) is not allowed; torture is always unlawful. Although the ‘fight against terrorism’ has pressured to allow exceptions on the prohibition of torture (as has been said that torture can be allowed if it could lead to information about impending attacks), the international legal order has resist this pressure up until now. Also torture that leads to prevention of a terroristic attack remains unlawful.

Most human rights, however, can be subjected to limitations. The ECHR and the Charter recognize that individual rights can conflict with the general interest or with rights of other individuals. The State must be able to balance those rights and if necessary restrict those rights.

Many civil and political rights contain exception clauses which allows states to infringe on those rights under certain conditions. This applies in particular to the right to respect for private and family life, home and correspondence (article 8 ECHR), freedom of thought, conscience and religion (Article 9 ECHR and Article 18 ICCPR), freedom of expression (Article 10 ECHR and Article 19 ICCPR) and freedom of assembly and association (Article 11 ECHR and Article 21 ICCPR).

4.2 The requirements for a justified interference under the ECHR The right to freedom of expression and the right to privacy are, however, not absolute right but must be balanced against and reconciled with other legitimate interests, be they private interests (of other persons) or public interests (of society as a whole). Limitations on these rights must comply with strict conditions. In the system of the ECHR in particular three conditions are important.70

70 Handbook on European data protection law, p. 63.

4.2.1 In accordance with the law First, the interference must be prescribed by law.71 This is a manifestation of the principle of legality - a key element of the rule of law. The state cannot without legal basis, for example, prohibit a demonstration or a meeting. The legal basis may consist of both formal and substantive law, but shall in all cases be sufficiently precise and known. This requirement not only refers to the existence of legislation, but also on the quality of the law.72 According to the jurisprudence of the ECtHR, interference is in accordance with the law if it is based on a provision of domestic law, which has certain qualities. The law must be ‘accessible to the persons concerned and foreseeable as to its effects”.73 A rule is foreseeable “if it is formulated with sufficient precision to enable any individual - if need be with appropriate advice - to regulate his conduct”.74 The degree of precision required of ‘the law’ in this connection will depend on the particular subject matter.75

4.2.2 Pursuing a legitimate aim Second, the intervention must seek to protect any of the interests mentioned in paragraph 2 of these provisions. The legitimate aim may be either one of the named public interests or the rights and freedoms of others.76 For example, in Article 10 paragraph 2 that is the national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, or the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. In legal practice this criterion, in general, does not lead to problems for a state that wants to limit a right. The legitimate aims are formulated so broadly that there is almost always an interest to find that can justify an interference.

4.2.3 Necessary in a democratic society Third, the interference must be necessary in a democratic society.77 This is in practice usually the decisive criterion. According to settled case-law, interference is only "necessary" if the interference is proportionate to protect interests.78 The ECtHR has stated that “the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued.”79

The admissibility of restrictions on civil and political rights is initially determined by the principle of legality: a restriction must be prescribed by law. But the controversy is almost always the question of whether a

71 Ibid. 72 ECtHR 27 April 2004, appl. no. 50210/99 (Doerga v. The Netherlands), par. 50. 73 ECtHR 16 February 2000, appl. no. 27798/95 (Amann v. Switzerland), par. 50. 74 ECtHR 16 February 2000, appl. no. 27798/95 (Amann v. Switzerland), par. 56. 75 ECtHR 26 April 1979, appl. no. 6538/74 (The Sunday Times v. the United Kingdom), par. 49. 76 Handbook on European data protection law, p. 64. 77 Handbook on European data protection law, p. 65. 78 ECtHR 21 June 1998, appl. no. 1073/84 (Berrehab v. The Netherlands) , par. 28. 79 ECtHR 26 March 1987, appl. no. 9248/81 (Leander v. Sweden) , par. 58.

18 restriction is provided by law, is necessary in a democratic society. This test is ultimately judged on the basis of a balancing of interests between the interests of the individual whose rights are restricted on the one hand and read to the general public interests or rights of other individuals on the other. Examples include a restriction on the freedom to demonstrate in order to protect public order, or a restriction of the freedom of expression to protect the privacy rights of another person. The fact that people's rights can collide, meaning that the state will be forced to weigh those down and finally let the law prevail over any other law.

The question of whether the state in a particular case has a positive obligation on the realization of the right, is governed by a balance of interests. Both negative and positive obligations should be at a "fair balance" be struck between the public interest and the interest of the individual. The European Court refers in this context to "the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for balance-which is inherent in the whole of the Convention."80

4.3 Jurisprudencial framework ECtHR As mentioned before the ECtHR created a comprehensive jurisprudencial framework when fundamental rights have to be balanced against each other. This paragraph will discuss the two most important landmark judgements regarding this framework: Von Hannover v. Germany (No. 2) and Axel Springer v. Germany.

4.3.1 Von Hannover II On 7 February 2012 the ECtHR issued a judgement concerning Princess Caroline of Monaco.81 This judgement has become to be known under the name 'Von Hannover II'. Just like the case which led to the first judgement in 2004,82 this affair was also about the balance between the privacy of Princess Caroline and the freedom of the press. In this judgement, the Caroline I judgement is further elaborated. The judges come to a unanimous verdict in what certainly has become a landmark judgement.

The battle that Princess Caroline of Monaco conducted more ten years ago against her pursuing paparazzi has led to a key portrait trial in Europe. Caroline sued the German state because in her view it did too little to protect her privacy. Constantly meaningless pictures appeared in German magazines in which she was shown at private occasions (but held in public) with titles like "Caroline .... a woman returning to life " and "Out and about with Princess Caroline in Paris ". According to the princess, she was from the moment she left her home 'constantly hounded by paparazzi who followed her every daily movement, be it crossing the road, fetching her children from school, doing her shopping, out walking, engaging in sport or going on

80 ECtHR 11 July 2002, appl. no. 28957/95 (Goodwin v. United Kingdom), par. 72, ECtHR 8 July 2003, appl. no. 36022/97 (Hatton v. United Kingdom), par. 98 and HR 22 December 2006, LJN AY8050, par. 3.5.3.1. 81 ECtHR 7 Februay 2012, appl. no 40660/08 and 60641/08 (Von Hannover v. Germany No. 2). 82 ECtHR 24 June 2004, appl. no. 59320/00 (Von Hannover I).

19 holiday'. She complained that the German law offered too little protection because they could only act against pictures taken in a closed room, and not against photos made in public spaces.

In the well known Caroline von Hannover I judgement, the ECtHR has made a distinction between reporting that contributes to public or political debate which is in the public interest and coverage about details of the private life of an individual who does not exercise official functions. This distinction is then also used to prevent any publication of pictures of celebs who did not serve the public interest. For example, the Associated Press was reprimanded for spreading quite innocent photos of Maxima and Willem-Alexander and their families, made skiing holiday in Argentina. There was no societal interest in this publication.

What sometimes does not seems to be borne in mind is that the Court in the Princess Caroline I judgement was weighing the particular situation in which the Princess of Monaco was in. Caroline was continuously harassed. The ECtHR considered that climate of 'continual harassment' creates a very strong invasion of privacy and almost a form of persecution. As an example is mentioned a picture taken from hundreds of meters away from Caroline who stumbles as she enters the Monte Carlo Beach Club. During the pleading Caroline's lawyer was referring to the six years earlier deceased Lady Di. Did it have to end the same for Caroline? These circumstances have contributed to the conviction of the German state. The question is whether the distinction drawn by the Court can simply be applied in each case. It seems particularly related to cases where celebrities are constantly annoying followed by the telephoto lenses of paparazzi, and not to 'innocent' pictures.

In the second case, the Monegasque royal family litigates again against the German government, this time following the publication of photographs in the German magazines Frau im Spiegel and Frau Aktuell of a ski trip in St. Moritz. The royal couple was proven right by the German courts against two photos. But the German court dismissed the claim against another photo of the couple on a stroll. That photo was illustrating an article about the poor health of Prince Rainier. The article was worded in Frau Aktuell 'That is genuine love. Princess Stéphanie. She is the only one who looks after the sick prince', and stated inter alia:'... where her father is concerned Princess Stéphanie knows where her heart lies. While the rest of the family are travelling around the world, she has run to be at the side of Prince Rainier (78), who appears to be seriously ailing. She is the only one who takes care of the sick monarch. Stéphanie's sister, Caroline (45), has taken a few days' holiday with her husband Ernst August (48) and their daughter Alexandra (2) at the fashionable St. Moritz ski resort in Switzerland. '83

The German court ruled that the poor health of the reigning prince is a topic that is in the general interest. The press was allowed to report about how his children combine their family obligations with their private wishes, for example, to go on vacation. The case went to the German Constitutional Court, and that Court

83 ECtHR 7 Februay 2012, appl. no 40660/08 and 60641/08 (Von Hannover v. Germany No. 2), par. 20.

20 made in its ruling (the English translation), inter alia, the following statements, which places the Princess Caroline I judgement into perspective :

‘Even entertaining contributions concerning prominent persons, for instance, are covered by the protection of freedom of the press. [...] Prominent persons can also offer orientation in shaping one’s own lifestyle, as well as fulfilling the function of role model or showing what one does not wish to imitate [...] The circle of legitimate general public interest would be prescribed too narrowly if one were to restrict this to behaviour that is scandalous, or morally or legally questionable.

Even the normality of everyday life, as well as conduct of celebrities that is in no way objectionable, may be brought to the attention of the public if this serves to form public opinion on questions of general interest [...] To deny an article its role as contributor to the formation of public opinion merely because of its entertaining presentation, might also violate the content of the fundamental-rights guarantee of Article 10 of the Convention. [...] Even “mere entertainment” cannot per se be denied all relevance in the formation of opinions. [...] In recent times the significance of visual portrayals for press reporting has in fact increased.‘

The ECtHR emphasized first that the right to respect for private life (Article 8 ECHR) and freedom of expression (Article 10 ECHR) both deserve equal protection. Which right prevails depends on the circumstances. The following criteria are relevant for the balance of interests in this case (those criteria are not necessarily relevant in cases where other circumstances apply): a) A key criterion is whether an expression (photo or article) delivers a contribution to a debate that is in the general interest. The question at issue in this appeal is when something qualifies as a subject that is in the general interest ("debate of general interest"). According to the Court that depends on the circumstances of the case. The Court gives us some examples, because it is not particularly enlightening. The ECtHR emphasized that this is not only the case for reports about politics or crime, but also, for example reports about sports or performing artists and where this criterion in Von Hannover I was the "decisive factor", the Court now calls the same criterion only 'an essential criterion'. So although it is indeed essential, it is not necessarily decisive. It is only one, although essential, of the conditions that help to determine the outcome. b) How well known is the person and what is the subject of the report? A distinction must be drawn between private individuals and persons acting in a public context, such as political or public figures. Public figures must tolerate more. The Court further refers to the fundamental distinction made in Caroline I between factual reporting that can contribute to a debate in a democratic society, and reporting on the details of the private life of an individual who does not exercise official functions. The ECtHR said that; 'While in the former case the press exercises its role of" public watchdog "in a democracy by imparting information and ideas on matters of public interest, that role appears less important

21 in the latter case'.84 This sentence contains another nuance of the judgement in Von Hannover I. After all, in Von Hannover I the ECtHR ruled that the role as a public watchdog played absolutely no role in reporting on the details of the private life of an individual who does not exercise official functions. In this second case, the ECtHR merely states that the watchdog function in such coverage is less important.

The ECtHR adds, however, referring to Von Hannover I, that: '... Although in certain special circumstances the public's right to be informed can even extend to aspects of the private life of public figures, Particularly where politicians are concerned, this will not be the case - Despite the person concerned being well known to the public - where the published photos and accompanying commentaries relate exclusively to details of the person's private life and have the sole aim of satisfying public curiosity in That respect ... in the Latter case, freedom or expression calls for a narrower interpretation. '85

Based on this judgement reporting is not easily established to relate solely to details of private life and the sole purpose is to satisfy the curiosity of the public. The ECtHR ruled, namely, that the German Court was entitled to conclude that the Prince Rainier disease is an event of contemporary. The publication of photos of the ski trip of Princess Caroline and Prince Ernst, who illustrated that they were on holiday while Princess Stephanie remained in Monaco to care for the sick Prince Rainier, was according to the ECtHR legitimate allowed by the German court. The photos contribute, at least to some extent, to a debate that is in the general interest. Thereby contemplating, ECtHR held that two other pictures of the ski trip, which did not relate to disease Rainier and had been published solely for entertainment purposes, according to the German court were not allowed.

This judgement implies that the ECtHR did not tilt too heavily on the criterion of "debate of general interest". After all, the implicit argument that someone who goes on vacation while a family member is sick does not (or not enough) care about that sick family member would simply fall into the category of gossip and slander. Moreover vicious gossip. That the disease of Rainier in itself is a matter of public interest does not alter this. Since the report was not about the that. The report was about the absence of Caroline.

The Von Hannovers saw what was coming and complained that media could invent each time an "event of contemporary society" for private pictures, to as yet to produce a report that contributes to a "debate of general interest" of. That complaint did not comply with the ECtHR. The Court stated that it only judged on a particular publication and not about future manifestations.

84 ECtHR 7 Februay 2012, appl. no 40660/08 and 60641/08 (Von Hannover v. Germany No. 2), par. 110. 85 ECtHR 24 June 2004, appl. no. 59320/00 (Von Hannover I), par. 64.

22 c) How the person which is reported behaved in the past. It is important how the person which is reported behaved prior to publication. In particular whether he has actively sought publicity. Though that does not mean that the person can no longer take action against publications, it is a relevant circumstance. It is also relevant whether the picture and the details have already been published previously. d) The content, form and consequences of the publication. Importantly, for example, is how the person in the photo is portrayed and how the publication was distributed (local, national). e) The circumstances in which the photographs were taken. Gave the person portrayed permission for the photograph and the publication? Is the picture secretly taken? Furthermore, the severity of the privacy violation and the relevant consequences thereof are relevant.

Summarizing, the judgement in Von Hannover II stressed once again that there are no golden rules for judging a publication. Failure to meet any of the criteria set out in the ECHR case law does not necessarily mean that a publication is (un)lawful. The circumstances of the case are sacred, and this make it difficult (or rather impossible) to lay down absolute rules. The ECtHR seems to realize that it has been trying to make absolute rules in Von Hannover I and now comes back from there. The European Court of Justice made in Von Hannover II a turn in the direction of freedom of expression, with the consequence that the (entertainment) press got more space.

4.3.2 Axel Springer vs. Germany On the same day as the Caroline of Hannover II judgement the ECtHR also decided in the Axel Springer case.86 This case has similarities with the Hannover II case.

The case Axel Springer concerns the publication of two articles about a well-known German TV actor in the Bild newspaper, from which Axel Springer is the publisher. In the first article it is stated that the actor - who had become best known for his role as a chief inspector of the police - was arrested for possession and use of cocaine during the annual Oktoberfest. The actor went to the German court to oppose this publication. With success, because Bild was forbidden to publish any further statements.

Almost a year later a new article appeared in Bild on the same issue. Occasion for this publication was that the actor had been given a fine of 18 000 euros after he had confessed to cocaine use and possession. This publication was also prohibited by the German court.

86 ECtHR 7 February 2012, appl. no. 39954/08 (Axel Springer v. Germany).

For both publications the German courts considered that the right to privacy of the actor outweighed the right of freedom of expression of Bild. The publications did not contain a debate of general interest, and even if that would be the case, it would not outweigh the right to privacy of the actor.

The ECtHR has a different opinion. Main consideration in the judgement appears to be the following statement: 'In order for Article 8 to come into play … an attack on a person’s reputation must attain a certain level of seriousness and in a manner causing prejudice to personal enjoyment of the right to respect for private life … The Court has held, moreover, that Article 8 cannot be relied on in order to complain of a loss of reputation which is the foreseeable consequence of one’s own actions such as, for example, the commission of a criminal offence …'.87

For the balance of interests, the following factors are of interest (which are similar to the factors mentioned in Caroline II): 1. Contribution to a debate of general interest 2. How well known is the person concerned and what is the subject of the report? 3. Prior conduct of the person concerned 4. Method of obtaining the information and its veracity 5. Content, form and consequences of the publication 6. Severity of the sanction imposed

According to the Court, the arrest and conviction of the actor are legal acts which in themselves are in the public interest (factor 1) and thus additionally be due to the actions of the actor himself (factor 3). The public, after all, wants to be informed about criminal proceedings. The question is whether that also means that the actor may be called by name. In answering this question the Court notes first that the actor was the main character in a popular TV series (factor 2). While the general public will distinguish between a character in a TV series, and the actor who plays that character, there can indeed be a close link between the popularity of the actor and his character, especially when the actor - as here - is best known for this particular role. A role that, in the present case was that of a chief inspector of the police. A character who was himself responsible for the investigation of criminal offenses. According to the Court that fact namely contributes to the importance of the public to be informed about criminal offenses of the actor. The fact that the man was arrested in a tent at the Oktoberfest is also an important news fact. Finally, the factor that plays a role is that the actor himself regularly poured out in interviews details from his private life, and therefore already could count on less protective of his privacy (factor 3).

All in all, the Court finds that the infringement of the freedom of expression of Bild (Axel Springer) is unlawful. The actor remains therefore unsuccessful in his submissions.

87 ECtHR 7 February 2012, appl. no. 39954/08 (Axel Springer v. Germany), par. 83.

4.4 The conditions for lawful limitations under the EU Charter The structure and wording of the Charter is different from that of the ECHR.88 According to Article 52 (1), limitations on the exercise of the rights and freedoms recognized by the Charter are admissible only if they: are provided for by law; respect the essence of the right to data protection; are necessary, subject to the principle of proportionality; and meet objectives of general interest recognized by the Union or the need to protect the rights and freedom of others.

In spite of the different wording, the conditions enumerated in Article 52 (1) of the Charter must be seen to comply with those named in Article 8 (2) of the ECHR, as Article 52 (3) of the Charter states, in its first sentence, that, “in so far as the Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention.”

However, with regard to the last sentence of Article 52 (3), “this provision shall not prevent Union law providing more extensive protection.” In the context of comparing Article 8 (2) of the ECHR and the first sentence of Article 52 (3), this can only mean that conditions for justified interferences according to article 8 (2) of the ECHR are the minimum requirements for lawful limitations of the right to data protection according to the Charter. Consequently, the conditions of Article 8 (2) of the ECHR must at the least be fulfilled; EU law could, however, lay down additional requirements for specific cases.

4.5 Margin of appreciation To states is a discretion (margin of appreciation) left to balance individual rights against general public interests. Since it is not possible to make such important decisions at a regional or global level. The margin of appreciation recognizes that national authorities are better able to express an opinion on the necessity and proportionality of restrictions. This means that the European system of human rights protection in a sense is applicant's subsidiary to national systems: whether and how a restriction should be applied must be determined primarily at national level.

In the case of Handyside the European Court of Human Rights had to judge over whether the UK should make an infringement on the right to freedom of expression by prohibiting certain pornographic publications. The Court ruled: 'The view taken by their respective laws of the requirements of morals varies from time to time and from place to place. Especially in our era which is characterized by a rapid and far-reaching evolution of opinions on the subject. By reason of their direct and continuous contact with the vital forces

88 Handbook on European data protection law, p. 66 – 67.

25 of their countries, State Authorities are in principle in a better position than the international judge to give an opinion on the exact content or thesis requirements.’89

The margin of appreciation is particularly important for politically, morally or religiously controversial issues. Thus, the Court left for Ireland the opportunity to ban abortion even if the health of the mother is at stake,90 for Italy to put crucifixes compulsory in schools91, and Austria to deny a gay people the right to marry.92

However, the margin of appreciation is not unlimited. Ultimately, the Court rules if the interpretation of the policy area is consistent with the law that protects the ECHR.

‘Under the Court’s case-law, the adjective “necessary”, within the meaning of Article 10 paragraph 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with the freedom of expression as protected by Article 10.’93

4.5 Conclusion This chapter showed that a balancing exercise must take place when different fundamental rights conflict with each other. A fundamental right may be restricted, but only if the interference can be justified. A justified interference is in accordance with the law, pursues a legitimate aim and is necessary in a democratic society. The next chapter will analyze if the Google Spain judgement did interfere with the freedom of expression and if this interference can be justified.

89 ECtHR 7 December 1976, appl. no. 5493/72 (Handyside v. United Kingdom), par. 48. 90 ECtHR 16 December 2010, appl. no. 25579/05 (A, B and C v. Ireland). 91 ECtHR 18 March 2011, appl. no. 30814/06 (Lautsi v. Italy). 92 ECtHR 24 June 2010, appl. no. 30141/04 (Schalk and Kopf v. Austria). 93 ECtHR 28 June 2001, appl. no. 24699/94 (Vgt Verein gegen Tierfabriken v. Switzerland), par. 67.

Chapter 5: Implications for the right to freedom of expression

If someone wants to remove links to webpages from search results there must be find a balance, when assessing his application, between the fundamental rights of the different parties. It concerns, specifically, the right to freedom of expression, the right to privacy and the right to protection of personal data.94 In principle it may be assumed that the right to privacy and the right to freedom of expression deserve equal weight. The ECtHR has stated in this respect: ‘as a matter of principle these rights deserve equal respect’.95 These rights must thus be regarded as equivalents as result of which the specific circumstances of the case should be decisive. The ECtHR has developed a detailed and nuanced framework when such considerations have to be made.96 The CJEU looks at the issue of the removal of search results, however, mainly from the perspective of the Data Protection Directive. Therefore, the reasoning of the CJEU focuses on the right to privacy and protection of personal data. The CJEU does not mention the fundamental right to freedom of expression (Article 11 of the Charter) explicitly. Contrary to the CJEU, the Article 29 Working Party mentions the right to freedom of expression and refers thereby to Article 11 of the Charter.97

This chapter will answer the research question of this master thesis. In order to do so, this chapter will follow the ECtHR analysis of balancing fundamental rights. First will be established if there was at all an intervention to the right of freedom of expression. Thereafter, the legitimacy of this interference will be contested.

5.1 Interference with the right to freedom of expression The removal of search results based on search on a name constitutes an interference with the right to freedom of expression of various parties: (1) those publishing information on the internet, (2) the search engine itself, and (3) the public that seeks access to the published information.98

First of all, parties who publish information on the internet can rely on the right to freedom of expression. The right to freedom of expression namely also protects ‘freedom to hold opinions and to receive and impart information and ideas’.99 In addition, the right to freedom of expression not only protects communication, but also the means of communication. As the ECtHR has stated:

94 The right to conduct a business, as protected by article 16 of the Charter will be disregarded. 95 ECtHR 7 February 2012, appl.no. 39954/08 (Axel Springer AG/Germany), par. 87 96 For example: ECtHR 7 February 2012, appl.no. 39954/08 (Axel Springer AG/Germany); ECtHR 7 February 2012, appl.no. 40660/08 en 60641/08 (Von Hannover/Germany); ECtHR 16 July 2013, appl.no. 33846/07 (Wêgrzynowski en Smolczewski/Polen). 97 Article 29 Working Group, ‘Guidelines on the implementation of the Court of Justice of the European Union judgement on “Google Spain and inc v. Agencia Española de Protección de Datos (AEPD) and Mario Costeja González” C-131/ 121’, adopted on 26 november 2014. 98 Freedom of information according to Article 11 of the Charter and Article 10 of the ECHR protects the right not only to impart but also to receive information. 99 Article 11 Charter and Article paragraph 1 ECHR.

‘Article 10 [of the European Convention on Human Rights] applies not only to the content of information but also to the means of transmission or reception since any restriction imposed on the means necessarily interferes with the right to receive and impart information.’100

In this regard Hoboken points out that, in the context of search engines, the right to freedom of expression must be understood as having the freedom to be included in the index of the search engine in order to be able to reach the public.101 The CJEU now considers that a search engine provider may be required to remove a result from the search results, even if the original publication is lawful. That obligation is limited to the removal of search results that are displayed when someone searches for a name. The website is therefore not entirely removed from the index of the search engine. So, the publication can still be found. Nonetheless, the removal makes it harder to find the original publication, and therefore limits the freedom of expression of the website holder. The CJEU, however, does not mention the freedom of expression of website holders. Contrary to the CJEU, the Advocate-General underlined the right to freedom of expression of the website holder. He pointed in this context to the lack of adequate legal protection in case of removal of search results by name. According to the Advocate-General, a removal from the search results constitutes an infringement of the right to freedom of expression of the website holder of the original webpage. The website owner would enjoy ‘no adequate legal protection (…), since such an unregulated ‘notice and take down’ procedure would be a private matter between the person concerned and the search engine provider’.102 Furthermore, the A-G states that the removal of search results essentially means that an individual can censor a website holder.103

Secondly, search engine operators can in principle rely on the freedom of expression. In that context Hoboken notes that the doctrine of freedom of expression should also focus on protecting the way search engines contribute to the ideals that underpin the right to freedom of expression.104 Kulk and Borgesius share the opinion that a search engine operator should be able to appeal on the right to freedom of expression.105 However, the CJEU makes no mention of the freedom of expression of the search engine operator.

Thirdly, the right to freedom of expression (in the Charter and the ECHR) protects ‘the freedom to receive information and ideas (…) without interference by the public authority and regardless of frontiers’. The ECHR noted: ‘the public has a right to receive information of general interest,’106 and the internet plays an important role in enhancing the public’s access to news and facilitating the sharing and dissemination of

100 ECtHR 22 mei 1990, appl.no. 12726/87 (Autronic AG/Switzerland), par. 47. 101 Van Hoboken 2012, p. 350. 102 Opinion A-G Jääskinen bij Google Spain (supra noot 2), par. 134. 103 Opinion A-G Jääskinen bij Google Spain (supra noot 2), par. 134. 104 Van Hoboken 2012 , p. 351. 105 Kulk and Zuiderveen Borgesius 2014, p. 389-398. 106 ECtHR 14 April 2009, appl.no. 37374/05 (Társaság a Szabadságjogokért/Hungary), par. 26.

28 information generally’.107 The removal of search results can thus also be seen as an interference with the right of the public to search for information on the web and to receive information and ideas.

5.2 Legitimacy of the interference While the removal of search results limit the right to freedom of expression of various parties the CJEU does not refer to this fundamental right explicitly. The CJEU does, however, refer to the ‘interests’ of internet users to find information and remains hereby close to the text of the Data Protection Directive, which also speaks of ‘interests’ in Article 7 sub f. But even if you assume that the CJEU implied to take into account the freedom of expression herein, you could argue that the CJEU gives insufficient weight to the freedom of expression.

The CJEU correctly states that a ‘fair balance’ must be struck between the legitimate interests of the internet users and the right to privacy and protection of personal data.108 However, the CJEU adds that the right to privacy and the right to protection of personal data of the person concerned does ‘in principle’ prevail over the economic interests from the search engine operator and the interests of the public to get access to the information when searched on the name of a person.109 With this ‘in principle’-rule the CJEU takes a different course then the ECtHR. After all, the ECtHR said that freedom of expression and privacy have in principle the same weight. It is therefore necessary to strike a balance between these rights in the light of the circumstances of a specific case. The ‘in principle’-rule is difficult to reconcile with the ECtHR case law.

The CJEU does add that in certain circumstances the interest of internet users outweigh the privacy rights of the person concerned, for example, due to the role of this person in the public life.110 This nuance is reminiscent of the approach of the ECtHR as the right to privacy and the right to freedom of expression collide. The ECtHR takes, inter alia, into account the reputation of the person to whom the publication relates, and with the extent to which the publication contributes to a discussion of general interest.111 The nuance of the CJEU on the role of the data subject in public life could reduce the risk that a search engine operator removes a search result that refers to publication that contributes to the public debate. Yet the, by the CJEU, introduced primacy of privacy rights over the rights – referred to by the CJEU as ‘interests’ – of search engine users is a remarkable deviation from the course of the ECtHR. In the opinion of Kulk and Borgesius search engine operators and search engine users should be able to rely on the right to freedom of expression. That does not mean that their rights should automatically weigh heavier than privacy rights. There must be a considered balance, taking into account all circumstances of the case. Also, if it is assumed

107 ECtHR 19 February 2013, appl.no. 40397/12 (Neij en Sunde Kolmisoppi/Sweden), par. 9 108 Google Spain (supra noot 2), par. 81. 109 Google Spain (supra noot 2), dictum onderdeel 4. 110 Google Spain (supra noot 2), par. 99. 111 ECtHR 7 February 2012, appl.no. 39954/08 (Axel Springer AG/Germany), par. 89-95; ECtHR 7 February 2012, appl.no. 40660/08 en 60641/08 (Von Hannover/Germany), par. 108-113.

29 that the right to freedom of expression and the right to privacy have an equal weight, the Spanish case would still be decided in advantage of Gonzalez.

5.3 Search engine operators in the role of the judge Search engines do not present a neutral image of the information available on the web. After all, they present an algorithmic sorted list of search results that reflects the choices of a search engine operator.112 It is therefore arguable that Google is partly responsible for the problem of Gonzalez. Without Google’s search engine Gonzalez would probably rarely be confronted with the outdated publication. The by the search results sketched image of Gonzales is thus partially created by Google. Perhaps the reasoning of the CJEU is based on the idea that Google is co-responsible for the problem of Gonzalez and Google therefore in the first place is the one responsible to solve the problem. As the British Information Commissioner (British DPA) after the Google Spain ruling stated: ‘the polluter pays, the polluter should clear up.’113

However, now search engine operators are qualified by the CJEU as controllers within the meaning of the directive, they are burdened with the difficult task to weigh the relevant fundamental rights against each other. While there are cases where the right to privacy must clearly outweigh the freedom of expression and it is therefore fitting that the search engine operator removes the search result, however, when the balance is more complex a search engine operator is not the most appropriate party to weigh the relevant fundamental rights. Data subjects may, after a granted or refused request for removal, step to a judge or national privacy regulator, but the fact remains that the search engine operator initially decides whether certain results are removed or not. The judge or national privacy regulator is moreover not involved by every removal. If, for example, the search engine operator removes – possibly unlawful - a search result and the website holder does not take any further action, then no consideration by the judge takes place. The balancing task should not primarily be made by the search engine operator or made dependent on a website holder whose references to his website have been removed. Especially in difficult cases it would be better if a judge considers the balancing between privacy and freedom of expression, in which equal weight is given to both fundamental rights. Judicial review may prevent unjustified deletions.

The Advocate-General in the Google Spain case advised against it to leave the balancing to the search engine operator. According to the A-G notice and take down procedures are likely to result in automatically removal of links to contested content, because the providers of the most popular and important search engines get to handle an unmanageable number of requests.114 In 2008 also the Article 29 Working Party

112 Grimmelmann 2014, p. 868 113 K. Fiveash, ‘ICO: It’s up to Google the “polluter” to tidy up “right to be forgotten” search links’, The Register, 24 July 2014, available at: theregister.co.uk/2014/07/24/ico_chief_says_google_needs_to_tidy_up_right_to_be_forgotten_requests_as_ search_engines_meet_brussels_officials (consulted on 27-07-2016). 114 Opinion A-G Jääskinen bij Google Spain (supra note 2), par. 133.

30 pointed out the important role of search engines for freedom of expression.115 The Article 29 Working Party reviewed search engines operators not as primary responsible in the sense of the Directive if they act purely as an intermediary.116

5.4 No media exception for search engines The CJEU could have given the search engine operators the possibility to benefit from the media exception as formulated under Article 9 of the Directive. Member States could then provide for exceptions in their national legislation to find a balance between freedom of expression and the protection of personal data. Article 9 states:

‘Member States shall provide for exemptions or derogations from the provisions of this Chapter, Chapter IV and Chapter VI for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression’.117

The CJEU interpreted this exception very broadly in the Satamedia case. The CJEU suggested in this case that the media exception also can apply for a text messaging service provider that allows the public to request information about the income and assets of people.118 It is therefore not farfetched to let search engine operators also benefit from the media exception. In 2008, the Article 29 Working Party stated also to enable search engine operators to benefit from the media exception in order to strike the right balance between freedom of expression and privacy.119 In short, even after the CJEU qualified the search engine operator as responsible with regard to the processing of personal data on the source pages of third parties, the CJEU could have given room to the freedom of expression to let the search engine operator benefit from the media exception. The CJEU, however, states explicitly that a search engine operator cannot benefit from the media exception.120

5.5 Further developments

5.5.1. Google’s reaction The Article 29 Working Party conducted consultations with search engine operators on how to respond to the judgement. Google has stated to the Working Party that until 18 July 2014 she received 91.000 removal requests, relating to 300.000 URLs. Googles says to grant about half of the requests. In 32% of the cases

115 Article 29 Working Group, ‘Advies 1/2008 over gegevensbescherming en zoekmachines’, 4 April 2008, p. 1-31. 116 Article 29 Working Group, ‘Advies 1/2008 over gegevensbescherming en zoekmachines’, 4 April 2008, p. 15. 117 Article 9 Directive 95/46/EC. 118 CJEU 16 december 2008, C-73/07 (Tietosuojavaltuutettu/Satakunnan Markkinapörssi Oy en Satamedia Oy), dictum. 119 Article 29 Working Group, ‘Advies 1/2008 over gegevensbescherming en zoekmachines’, 4 april 2008, p. 14. 120 CJEU Google Spain par. 85.

Google has decided not to remove the search results. In 15% of the cases Google has requested more information from the applicant.121 Incidentally, Google has some experience with removal requests. Google receives up to 8 million removal request per week for pages which contain material that infringes copyright.122 The vast majority of those pages are removed from Google’s search results.123 If Google removes a search result, Google informs the relevant website holder. Google tells the website holder which URL it removed, but does not announce who has requested the removal, or provide any further details.124 Informing the website holder enables them to find out why the page has been removed from search results. If the publication does not longer appear in search results and the website holder does not agree with the removal, then the website holder can ask Google to reverse the removal. When a website holder is informed of a request for removal of a publication that is similar to the Gonzalez case, the website holder may decide that the removal is reasonable.

Google has introduced a somewhat vague statement on its European websites stating that: ‘Some results may have been removed under data protection law in Europe’. Google shows this statement on almost all search results pages for personal names, and not only on pages that have been affected by a removal. Google has declared to the Article 29 Working Party that ‘[t]he notification is intended to alert users to the possibility that their results for this kind of query may have been affected by a removal, but not to publicly reveal which queries were actually affected.’125 This practice, however, gives the public little insight on which search results have been removed. Therefore, the public has no insight into the way their right to access information is limited.

When a search engine operator would like to report about the removal of search results based on the data protection legislation, he faces more difficulties than with other categories of removal requests. Disclosure of specific transparency reports on such removals, which also include the reasons why the results have been removed, may cause friction with the right to privacy of the applicant. In this regard the British Information Commissioner notes that in some cases it may be not advisable to inform the website holder about a removal request, for example, in the case of hate sites. In such cases, the informal of the website holder could aggravate an already delicate situation and informing the publicist could affect the privacy of the complainant.126 The problem of lack of transparency is therefore not easy to solve.

121 Letter from Google to Article 29 Working Group, 31 July 2014, available at: goo.gl/vQRE3B (consulted on 27-07- 2016), answer to question 14. 122 For more information see: Google, ‘Transparency Report’, available at: https://www.google.com/transparencyreport/removals/copyright/?hl=nl (consulted on 27-07-2016). 123 For more information see: Google, ‘FAQ’, available at: google.com/transparencyreport/removals/copyright/faq/#compliance_rate (consulted on 27-07-2016). 124 Letter from Google to Article 29 Working Group (supra note 150), answer to question 6. 125 Letter from Google to Article 29 Working Group (supra note 150),answer to question 20. 126 D. Smith, Deputy Commissioner and Director of Data Protection, ‘Update on our response to the European Google judgement’, ICO, 7August 2014, available at: iconewsblog.wordpress.com/2014/08/07/update-on-our-response-to-the- europeangoogle-judgement (consulted on 27-07-2016).

5.5.2 Illustration: First Dutch search engine judgement In 2014, not long after the CJEU had delivered its judgement, a Dutchman filed a lawsuit against Google.127 The plaintiff was a criminal who was convicted to six years in prison for attempted incitement of an assassin. An undisclosed author published a book about the crime in 2013. In the book, which is described in the judgement as a mix of fact and fiction, a character commits a murder. That character has the same name as the criminal. The criminal then asked via a Google form to remove six URLs for search results on his name. Google removed three of those URLs, but the other three not. The judgement shows that it involves URLs of book websites where information can be found about the book. The criminal had also claimed removal regarding those URLs. The facts if this case differ clearly from the situation of Gonzalez, partly because the plaintiff is a convicted criminal. In addition, the search results are not directly referring to information about the criminal, but to information about a book in which the name of the criminal coincides with a character in that book.

Unlike the CJEU, the Dutch court notes that when applying the relevant provisions two fundamental rights are at stake, the right to privacy (Article 8 ECHR) and the right freedom of information (Article 10 ECHR and Article 7 of the Dutch Constitution).128 According to the judge, the right to freedom of information is of particular importance to the search engine operator Google. When it comes to the rights of internet users, webmasters and providers of information on the internet, the Dutch Court speaks, just as the CJEU, only of ‘interests’.129

According to the Dutch court restraint must be given by the imposition of limitation on the operations of search engine.130 After all, search engines have a significant social function, because they are essential for internet users to find information.131 According to the Dutch Court the Google Spain judgement seeks, moreover, ‘not to protect people against all the negative posts on the internet, but only against the messages which are irrelevant, excessive and unnecessary’. 132 In its ruling the court further notes: ‘committing a crime has the result that one can get in the news in a very negative manner and this leaves also – possibly very long - its mark on the internet.133

Although the Dutch judge refers to the Google Spain judgement, he lays a quite different accent. Unlike the CJEU, the judge stressed the importance of search engines in information provision. Moreover, the Dutch Court considers, unlike the CJEU, the freedom of expression explicitly. The judges comes to a final

127 Rb. Amsterdam 18 september 2014, ECLI:NL:RBAMS:2014:6118. 128 Rb. Amsterdam 18 september 2014, ECLI:NL:RBAMS:2014:6118, par. 4.7. 129 Rb. Amsterdam 18 september 2014, ECLI:NL:RBAMS:2014:6118, par. 4.7. 130 Rb. Amsterdam 18 september 2014, ECLI:NL:RBAMS:2014:6118, par. 4.5. 131 Rb. Amsterdam 18 september 2014, ECLI:NL:RBAMS:2014:6118, par. 4.5. 132 Rb. Amsterdam 18 september 2014, ECLI:NL:RBAMS:2014:6118, par. 4.11. 133 Rb. Amsterdam 18 september 2014, ECLI:NL:RBAMS:2014:6118, par. 4.11.

33 conclusion that fits the contours of the Google Spain judgement, but in his argument he does more justice to the freedom of expression than the CJEU.

5.5.3 Article 29 Working Party In November 2014 the Article 29 Working Party has published some guidelines for the implementation of the Google Spain judgement.134 The guidelines developed by the Article 29 Working Party are not legally binding as such. They do, however, act as a strong predictor of how national data protection authorities will evaluate complaints brought against recalcitrant search engines. The Working Party acknowledges alongside the economic interest of the search engine operator, the freedom of expression of the public looking for access to information. Unlike the CJEU, the Working Party mentions the freedom of expression, referring to Article 11 of the Charter. According to the Working Group the effect of the removal of search result for a name is limited.135 The freedom of expression will need to be continue weighed by the search engine operators. If the freedom of expression outweighs the right to right to privacy of the person concerned the search engine should decide to not proceed with the removal of search results.

The Working Group also notes that the persons concerned can first contact the website holder, but they are not obliged to do so. Moreover, the person concerned is free to decide to which search engine he appeals. Although central in the judgement is the removal of search results from general search engines, the right of disposal could possibly also apply to other intermediaries. However, the Working Group in this respect states that the right of disposal shall not apply with regard to ‘internal’ search engines, such as a search engine that searches only the website of a newspaper. Such a search engine does not create such a detailed profile as for example the Google search engine. The Working Group states further that, for the purpose of effective and complete protection of the rights to privacy of those involved, search engines must implement the removal of a search result for all their domain names (also for their international .com domain name). The Working Group does not want that the European data protection law can be circumvented by users by simple using a non-European version of the search engine. The requirement of the disposal from the .com domain names cannot be derived directly from the judgement. Google redirects its users to the local version of the search engine based on their location, such as www.google.nl when searched from the Netherlands.136 Google claims that 95% of the European users use the national version of the Google search engine, such as Google.nl in the Netherlands.137 Assuming that these figures are correct, then it might go to far as to require removal from the .com version. In the United States the right to right to freedom of expression is of greater importance

134 Article 29 Working Group, ‘Guidelines on the implementation of the Court of Justice of the European Union judgement on “Google Spain and inc v.Agencia Españolade Protecciónde Datos(AEPD) and Mario Costeja González” C-131/ 121’, adopted on 26 november 2014. 135 Ibid, par. 9. 136 For more information see: Google, ‘Google.com goes to the wrong Google page’, available at: support.google.com/websearch/answer/873?hl=en (consulted on 27-07-2016). 137 Letter from Google to Article 29 Working Group (supra note 150), answer to question 3.

34 than in Europe. Therefore, strong criticism from the United States can be expected on the requirement to remove results from the .com version. Moreover, the opinion of the Working Party does not exclude that a search engine operator will only remove the results from the .com version that European users get to see. In other words, a user from Japan or the United States would be able to access on google.com the non- altered versions, while an European user will get to see the altered version. Such an approach of a search engine operator would not conflict with the text of the opinion.138

5.6 Conclusion With the Google Spain judgement the CJEU states that, under certain conditions, data subjects have the right to remove search results that appear when a search on their name is performed. The CJEU had to answer some difficult questions. The CJEU correctly points out that a balance must be found between the interests involved. However, in my opinion, the CJEU pays to little attention to the right to freedom of expression. By qualifying the search engine operator as responsible with regard to the processing of personal data on the source pages of third parties, the CJEU entrusts the operator with the complex task to weigh the fundamental rights. However, a search engine operator is not the most suitable party to weigh those rights, especially not in hard cases. Moreover, the CJEU departs from the customary doctrine by suggesting that privacy rights in principle outweigh other rights. After the judgement it remains furthermore unclear whether search engine operators may still index websites that contain sensitive data. However, the judgement seems to lead to a reasonable result in the specific case of Mr. Gonzalez.139 It is indeed good defendable that Gonzalez should not be faced with old messages about social security debts. The criticism, therefore, concerns mainly the reasoning of the CJEU, and the consequences that may have in other cases where the balance is more difficult to make.

For an application to be forgotten to provide sufficient chance of success the following rules apply: 1. The information must on many aspects relating to (parts) of your private life that, without Google, or only could be connected with great difficulty to your name. The search is thus more or less captured detailed profile. 2. The effect of the discoverability Google has been increased because of the important role of the internet and search engines in modern society. 3. In general, the privacy interests of the person concerned may prevail over the economic interests of a search engine such as Google and above the interests of the users of the search engine to obtain the information 4. But, depending on the nature and sensitivity of the data processed and the interest of the public to access that information this assessment may disadvantage of failure of the person concerned. This may particularly

138 Guidelines Article 29 Working Group 2014 (supra note163) , par. 20. 139 A. White ,‘Google Gets Spanish Court Order to Cut Search Links on Privacy’, Bloomberg, 27 January 2015, available at: http://www.bloomberg.com/news/articles/2015-01-27/google-gets-spanish-court-order-to-cut-search- links-on-privacy (consulted on 27-07-2016).

35 be the role of the individual in public life. In practice, the interests will stand or fall with the nature and sensitivity of the data processed and the interest of the public to have access to that information. It is thereby then the question - how relevant is the data? - see the information on the professional or private life of the individual? - How old is the information? - Is the information correct? - The information is of interest to the public? - The information serves the public interest? More relevant, more private, more recent, more accurate, more important, more general interest, the sooner the decision can to the detriment of the person falling. 5. Moreover: Even if weighing fall in favor of the person concerned and whether Google should therefore remove the search results, it still is separate from the (accessibility of the) original site: this is still findable. This website itself can be addressed under the circumstances.

Chapter 6: Conclusion

This master thesis focuses on the question whether the Google Spain judgement does interfere upon the freedom of expression and if so, if it is the least restrictive intervention. First of all, in order to obtain an answer to this research question Chapter 2 provided more detailed information about the judgement. The CJEU holds in the Google Spain judgement that people, under certain conditions, have the right to have search results for their name delisted (so-called ‘right to be forgotten’). This right can also extend to lawfully published information. This judgement led to an academic debate whether or not the CJEU delivered a ‘correct’ judgement and what the consequences of this judgement were. The differing opinions of this academic debate are captured in Chapter 3. One of the main criticisms on the judgement is the lack of attention to the freedom of expression. According to the jurisprudential framework of the ECtHR a balancing exercise must take place when fundamental rights collide. This balancing exercise has been explained in Chapter 4. Thereafter, Chapter 5 analyzes this balancing exercise in the light of the Google Spain judgement and formulates an answer to the research question.

The Google Spain judgement does interfere upon the freedom of expression. It does so of three various parties, namely: (1) those publishing information on the internet, (2) the search engine itself, and (3) the public that seeks access to the published information. The second question to be asked is whether this interference can be justified. The interference must therefore be in accordance with the law, pursue a legitimate aim and must be necessary in a democratic society. The interference is provided for by the law, namely Article 12(b) and Article 14(1)(a) of the Data Protection Directive. Those articles can also be regarded as accessible and foreseeable. The legitimate aim pursued is protection of the rights of others (right to privacy of Mr. Gonzalez). Remains the third and last condition: the interference must be necessary in a democratic society. In Handyside, the Court ruled that the word "necessary” meant that there must be a "pressing social need” for the interference.140 While evaluating whether it exists such a "pressing social need” or not, national authorities are allowed a margin of appreciation, but the principle of proportionality has to be applied.141 The principle of proportionality requires that there must be a reasonable relationship between a particular objective to be achieved and the means used to achieve that objective.142 When dealing with interferences, the Court has often decided the question of proportionality by asking whether a particular measure could be achieved by less restrictive means.143 In my opinion the CJEU, by prevailing privacy rights, did not decide for the least restrictive intervention. The CJEU could have given the search engine operators the possibility to benefit from the media exception as formulated under Article 9 of the Directive.

140 Gordon, Ward and Eicke 2001, p.1125-1138. 141 Lawson and Schermers 1997, p. 28-42. 142 Birsan 2005, p.796. 143 For example: ECtHR 25 March 1992, appl. no. 13590/88 (Campbell v. The United Kingdom).

This ruling opens the door for individuals to ask search engines to remove links. But this concerns only the specific search for a name, it is important to clarify that distinction. For example, in the case of the complainant, which links to a newspaper report about the auction would have removed his confiscated house, the information is no longer listed in the search for the name of the complainant. But the newspaper will remain listed when someone searches for example seizures in Madrid in the '90s. So this is very positive for the privacy of individuals.

The court emphasizes the negative consequences of information for individuals, but ignores the importance of visibility of information in general. We need freedom of information to function properly in society. The media are, for example partly dependent on the search engines for the accessibility of their products and to find information themselves. The protection of the privacy of individuals by law goes quite far, but the media always had a special position here. For search engines this exceptional situation does not apply, whereas they are the primary opener of the media.

However, the CJEU does build potential safeguards, so that the freedom of information is not totally the victim here. Individuals have not received an absolute right with this statement to remove all information that is displeasing them. Search engines operators are not immediately required to remove the links on request,, but they are obliged to look at the request. The search engine operator can then decide: is the request founded, what are the interests of the individual versus other parties or the public interest? If the search engine refuses the request, there is a judicial review. The individual can then go to the privacy commission or to court. There the various interests will also be balanced.

There is a certain risk that search engine operators will easily handle removal requests to avoid further problems. The search engine operator will not risk a fine if they do not remove the search results. The privacy commission or the judge may require, at most, to remove the link. So they have no incentive to remove search results themselves such as is the case with links to child pornography. If they ignore a request removal of links to child pornography, they can be held liable.

The new General Data Protection Regulation entered into force on May 25, 2016 and will apply on May 25, 2018. At that time, the Data Protection Directive will be repealed and the Regulation enters into the place of the laws implementing the Directive was implemented in the national laws of the Member States.144 The Regulation aims to increase the level of protection of personal data by strengthening the rights of the persons concerned and by achieving an equivalent level of protection in all EU Member States.

144 Regulation (EU) 2016/679 of the European Parliament and of the Council 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).

The right to erasure ("right to be forgotten"), which was recognized by the CJEU in Google Spain, is included in Article 17 of the new privacy regulation. The third paragraph of Article 17 expressly states that there are exceptions to the right to be forgotten, including the extent necessary for processing for exercising the right to freedom of expression and information. The recitals show that this in particular applies in the situation that a person has given permission for data processing as a child, when he was not fully aware of the risks and wants them removed later, especially from the Internet. When personal information is disclosed, the controller should notify other controllers that handle personal information that the person concerned has requested to delete links to or copies of such personal data.

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