DOCSLIB.ORG

Google Spain and the Right to Freedom of Expression

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
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 2 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 3 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. 4 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
Load more

Recommended publications
  • Issues Paper on Cyber-Crime Affecting Personal Safety, Privacy and Reputation Including Cyber-Bullying (LRC IP 6-2014)
    Issues Paper on Cyber-crime affecting personal safety, privacy and reputation including cyber-bullying (LRC IP 6-2014) BACKGROUND TO THIS ISSUES PAPER AND THE QUESTIONS RAISED This Issues Paper forms part of the Commission’s Fourth Programme of Law Reform,1 which includes a project to review the law on cyber-crime affecting personal safety, privacy and reputation including cyber-bullying. The criminal law is important in this area, particularly as a deterrent, but civil remedies, including “take-down” orders, are also significant because victims of cyber-harassment need fast remedies once material has been posted online.2 The Commission seeks the views of interested parties on the following 5 issues. 1. Whether the harassment offence in section 10 of the Non-Fatal Offences Against the Person Act 1997 should be amended to incorporate a specific reference to cyber-harassment, including indirect cyber-harassment (the questions for which are on page 13); 2. Whether there should be an offence that involves a single serious interference, through cyber technology, with another person’s privacy (the questions for which are on page 23); 3. Whether current law on hate crime adequately addresses activity that uses cyber technology and social media (the questions for which are on page 26); 4. Whether current penalties for offences which can apply to cyber-harassment and related behaviour are adequate (the questions for which are on page 28); 5. The adequacy of civil law remedies to protect against cyber-harassment and to safeguard the right to privacy (the questions for which are on page 35); Cyber-harassment and other harmful cyber communications The emergence of cyber technology has transformed how we communicate with others.
    [Show full text]
  • Photographs in Public Places and Privacy
    [2009] 2 Journal of Media Law 159–171 Photographs in Public Places and Privacy Kirsty Hughes In the last few years, the European Court of Human Rights (‘the Court’) has considered a number of cases relating to photographs taken in public places, and it is now clear that the jurisprudence has evolved significantly since the early cases in which no protection was afforded to the privacy interests of those photographed. The most recent cases (Reklos and Davourlis v Greece and Egeland and Hanseid v Norway) have extended the protection afforded by Article 8 of the European Convention on Human Rights (ECHR) so that the right is engaged at the stage at which photographs are taken.1 The author argues that whilst this development was necessary, there are a number of problems with the Court’s approach and that further guidance from the Court is essential. THEORIES OF PRIVACY-RELATED INTERESTS To fully understand the significance of the Article 8 ECHR photography cases, one has to have some idea of how these cases relate to the protection of privacy. There are many different theories of privacy and privacy-related interests and it is beyond the scope and purpose of this commentary to examine the details of those theories here.2 However, it * Clare College, University of Cambridge. 1 (App No 1234/05) [2009] EMLR 16 and (App No 34438/04) [2009] ECHR 622, available on HUDOC. 2 The literature is extensive; a good starting point would be Ruth Gavison, ‘Privacy and the Limits of the Law’ (1980) 89(3) Yale Law Journal 421; Hyman Gross, ‘Privacy and Autonomy’
    [Show full text]
  • A Right That Should've Been: Protection of Personal Images On
    275 A RIGHT THAT SHOULD’VE BEEN: PROTECTION OF PERSONAL IMAGES ON THE INTERNET EUGENIA GEORGIADES “The right to the protection of one’s image is … one of the essential components of personal development.” Grand Chamber of the European Court of Human Rights ABSTRACT This paper provides an overview of the current legal protection of personal images that are uploaded and shared on social networks within an Australian context. The paper outlines the problems that arise with the uploading and sharing of personal images and considers the reasons why personal images ought to be protected. In considering the various areas of law that may offer protection for personal images such as copyright, contract, privacy and the tort of breach of confidence. The paper highlights that this protection is limited and leaves the people whose image is captured bereft of protection. The paper considers scholarship on the protection of image rights in the United States and suggests that Australian law ought to incorporate an image right. The paper also suggests that the law ought to protect image rights and allow users the right to control the use of their own image. In addition, the paper highlights that a right to be forgotten may provide users with a mechanism to control the use of their image when that image has been misused. Dr. Eugenia Georgiades, Assistant Professor Faculty of Law, Bond University, the author would like to thank Professor Brad Sherman, Professor Leanne Wiseman and Dr. Allan Ardill for their feedback. Volume 61 – Number 2 276 IDEA – The Law Review of the Franklin Pierce Center for Intellectual Property Abstract ..........................................................................
    [Show full text]
  • Tech Giants, Freedom of Expression and Privacy
    TECH GIANTS, FREEDOM OF EXPRESSION AND PRIVACY TECH GIANTS, FREEDOM OF EXPRESSION AND PRIVACY Rikke Frank Jørgensen & Marya Akhtar e-ISBN: 978-87-93893-77-1 © 2020 The Danish Institute for Human Rights Wilders Plads 8K DK-1403 Copenhagen K Phone +45 3269 8888 www.humanrights.dk Provided such reproduction is for non-commercial use, this publication, or parts of it, may be reproduced if author and source are quoted. At DIHR we aim to make our publications as accessible as possible. We use large font size, short (hyphen-free) lines, left-aligned text and strong contrast for maximum legibility. For further information about accessibility please click www.humanrights.dk/accessibility 2 CONTENT 1 EXECUTIVE SUMMARY ................................................................................... 5 2 INTRODUCTION ............................................................................................. 7 3 WHAT IS A TECH GIANT ................................................................................. 9 4 HUMAN RIGHTS PROTECTION ...................................................................... 11 4.1 THE UN ..................................................................................................... 11 4.1.1 binding rules.......................................................................................... 11 4.1.2 guidelines and recommendations .......................................................... 13 4.2 THE COUNCIL OF EUROPE AND THE EUROPEAN COURT OF HUMAN RIGHT ...........................................................................................................
    [Show full text]
  • The Failure to Define the Public Interest in Axel Springer AG V
    Boston College International and Comparative Law Review Volume 36 Article 5 Issue 3 Electronic Supplement 2-18-2014 Meaningful Journalism or "Infotainment"? The Failure to Define the Public nI terest in Axel Springer AG v. Germany Kathryn Manza Boston College Law School, [email protected] Follow this and additional works at: http://lawdigitalcommons.bc.edu/iclr Part of the Communications Law Commons, Comparative and Foreign Law Commons, Entertainment, Arts, and Sports Law Commons, First Amendment Commons, Human Rights Law Commons, and the International Law Commons Recommended Citation Kathryn Manza, Meaningful Journalism or "Infotainment"? The Failure to Define the Public Interest in Axel Springer AG v. Germany, 36 B.C. Int'l & Comp. L. Rev. E. Supp. 61 (2014), http://lawdigitalcommons.bc.edu/iclr/vol36/iss3/5 This Comments is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College International and Comparative Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. MEANINGFUL JOURNALISM OR “INFOTAINMENT”? THE FAILURE TO DEFINE THE PUBLIC INTEREST IN AXEL SPRINGER AG v. GERMANY Kathryn Manza* Abstract: Although American courts provide wide discretion for freedom of the press, the Convention for the Protection of Human Rights and Fundamental Freedoms ensures that the right to privacy enjoys equal footing with freedom of expression in Europe. When navigating the grey areas between these two frequently opposing rights, the European Court of Human Rights allows private information about a public figure to be published only to the extent the information contributes to the public in- terest.
    [Show full text]
  • 'The Right to Be Forgotten: More Than a Pandora's Box?'
    Rolf H. Weber The Right to Be Forgotten More Than a Pandora’s Box? by Rolf H. Weber,* Dr.; Chair Professor for International Business Law at the University of Zurich and Visiting Professor at the University of Hong Kong Abstract: Recently, political voices have ple of free speech. Therefore, its scope needs to be stressed the need to introduce a right to be forgot- evaluated in the light of appropriate data protection ten as new human right. Individuals should have the rules. Insofar, a more user-centered approach is to right to make potentially damaging information dis- be realized. “Delete” can not be a value as such, but appear after a certain time has elapsed. Such new must be balanced within a new legal framework. right, however, can come in conflict with the princi- Keywords: Data protection; delete; free speech; privacy; privacy enhancing technologies; user-centered ap- proach © 2011 Rolf. H. Weber Everybody may disseminate this article by electronic means and make it available for download under the terms and conditions of the Digital Peer Publishing Licence (DPPL). A copy of the license text may be obtained at http://nbn-resolving. de/urn:nbn:de:0009-dppl-v3-en8. Recommended citation: Rolf H. Weber, The Right to Be Forgotten: More Than a Pandora’s Box?, 2 (2011) JIPITEC 120, para. 1. A. Introduction specific “case” is described in Mayer-Schönberg- er’s book Delete: The Virtue of Forgetting in the Digital 4 1 In 2010 a first legislative project was developed in Age. Stacy Snyder, a 25-year-old former education France that envisaged
    [Show full text]
  • Protecting Fundamental Rights Online in the Algorithmic Society
    From Constitutional Freedoms to the Power of the Platforms: Protecting Fundamental Rights Online in the Algorithmic Society Giovanni De Gregorio* Summary: 1. Introduction. – 2. From Public to Private as from Atoms to Bits: the Reasons for a Governance Shift. – 3. Delegated Exercise of Quasi-Public Powers Online. 3.1 The Online Content Management. 3.2 The Right to Be Forgotten Online. – 4. Autonomous Exercise of Quasi- Public Powers Online. Towards a private constitutional order or an absolute regime? – 5. Solutions and Perspectives. 5.1 An Old-School Solution: Nudging Online Platforms to Behave as Public Actors. 5.2 An Innovative Solution: Enforcement of Fundamental Rights. – 6. Conclusion: Digital Humanism v Techno-Authoritarianism. 1. Introduction In recent decades, globalisation has challenged the boundaries of constitutional law by calling traditional legal categories into question.1 The internet has played a pivotal role in this process.2 On the one hand, this new protocol of communication has enabled the expanded exercise of individuals' fundamental rights such as freedom of expression.3 On the other hand, unlike other ground-breaking channels of communication, the cross-border nature of the internet has weakened the power of constitutional states, not only in terms of the territorial application of sovereign powers vis-à-vis other states but also with regard to the protection of fundamental rights in the online environment. It should come as no surprise that, from a transnational constitutional perspective, one of the main concerns of states is the limitations placed on their powers to address global phenomena occurring outside their territory.4 The development of the internet has allowed new businesses to exploit the opportunities deriving from the use of a low-cost global communication technology for delivering services without any physical burden, regardless of their location.
    [Show full text]
  • Celebrity Privacy and the Development of the Judicial Concept of Proportionality
    Celebrity privacy and the development of the judicial concept of proportionality: How English law has balanced the rights to protection and interference Robin Callender Smith Queen Mary University of London Centre for Commercial Law Studies Submitted in partial fulfilment of the requirements of the Degree of Doctor of Philosophy Date submitted: 11 August 2014 Examined by viva 6 November 2014 External examiner: Professor Ian Lloyd (Southampton University) Internal examiner: Dr. Andrew Scott (London School of Economics) Passed without corrections Statement of Originality I, Robin Callender Smith, confirm that the research included within this thesis is my own work or that where it has been carried out in collaboration with, or supported by others, that this is duly acknowledged below and my contribution indicated. Previously published material is also acknowledged below. I attest that I have exercised reasonable care to ensure that the work is original, and does not to the best of my knowledge break any UK law, infringe any third party’s copyright or other Intellectual Property Right, or contain any confidential material. I accept that the College has the right to use plagiarism detection software to check the electronic version of the thesis. I confirm that this thesis has not been previously submitted for the award of a degree by this or any other university. The copyright of this thesis rests with the author and no quotation from it or information derived from it may be published without the prior written consent of the author. Robin Callender Smith 11 August 2014 2 Details of collaboration and publications R Callender Smith, Press Law (Sweet & Maxwell 1978).
    [Show full text]
  • Handbook on European Data Protection
    HANDBOOK Handbook on European data protection law © European Union Agency for Fundamental Rights, 2014 Council of Europe, 2014 The manuscript for this Handbook was completed in April 2014. Updates will become available in future on the FRA website at: fra.europa.eu, the Council of Europe website at coe.int/dataprotection, and on the European Court of Human Rights website under the Case-Law menu at: echr.coe.int. Reproduction is authorised, except for commercial purposes, provided the source is acknowledged. Europe Direct is a service to help you find answers to your questions about the European Union Freephone number (*): 00 800 6 7 8 9 10 11 (*) The information given is free, as are most calls (though some operators, phone boxes or hotels may charge you). Photo credit (cover & inside): © iStockphoto More information on the European Union is available on the Internet (http://europa.eu). Cataloguing data can be found at the end of this publication. Luxembourg: Publications Office of the European Union, 2014 ISBN 978-92-871-9934-8 (CoE) ISBN 978-92-9239-461-5 (FRA) doi:10.2811/69915 Printed in Belgium Printed on process chlorine-free recycled paper (PCF) This handbook was drafted in English. The Council of Europe (CoE) and the European Court of Human Rights (ECtHR) take no responsibility for the quality of the translations into other languages. The views expressed in this handbook do not bind the CoE and the ECtHR. The handbook refers to a selection of commentaries and manuals. The CoE and ECtHR take no responsibility for their content, nor does their inclusion on this list amount to any form of endorsement of these publications.
    [Show full text]
  • The Right to Be Forgotten As a New Challenge of Human Rights
    The Right to be Forgotten As a New Challenge of Human Rights: Analysing its Functioning in the Personal Data Protection Zihan Yan E.MA MASTER’S DEGREE IN HUMAN RIGHTS AND DEMOCRATISATION Academic year 2012-2013 SUPERVISED BY KOEN LEMMENS Katholieke Universiteit Leuven Acknowledgement I would like to express my gratitude to my supervisor, Professor Koen Lemmens, who is Director of the E.MA programme for Katholieke Universiteit Leuven helped me carry out the research. I take immense pleasure in thanking Michaël Merrigan, teaching assistant at the KUleuven Institute for Human Rights and Critical Studies and the whole staff of Faculty of Law in KUleuven which hosted me during the second semester. Without their help this research would not have been possible. Finally, I wish to express thanks to the whole E.MA staff and masterini crew for the wonderful year together. Abstract: Rapid technological developments have brought new challenges for the protection of personal data. The right to be forgotten as an element of personal data protection has been debated hotly and controversially for the past few years, especially in Europe. The scale of data sharing and collecting has made personal information publicly and globally available, therefore it is necessary to provide a legal mechanism to persons to remove their personal data from online databases. This thesis seeks to address how important the right to be forgotten will be as a new human right to protect personal data information in the digital age. The right to be forgotten needs better definition to avoid negative consequences since it is not very clear yet.
    [Show full text]
  • Country: Germany Score: 83.95 | Rank: 1/24
    COUNTRY: GERMANY SCORE: 83.95 | RANK: 1/24 Germany provides strong protection for cloud services, through a combination of comprehensive cybercrime legislation as well as an up-to-date cybersecurity strategy. Germany also has modern electronic commerce and electronic signature laws. Germany has comprehensive privacy legislation, but it includes onerous registration requirements that may act as a cost barrier for the use of cloud computing. Germany has a strong commitment to international standards and interoperability. In the area of intellectual property, Germany offers good protection but there are some areas in which improvement could be made including further trade secrets protection. Germany is making good progress on extending broadband access to the population. Its current target is to ensure that all households have access to broadband with speeds of at least 50 Mbps by the end of 2018. Although Germany’s overall rank has improved since the last Scorecard — from third to first place — this stemmed largely from the rebalancing of the Scorecard methodology. The country’s improved scores in the security section of the report also contributed to the increase. # GERMANY RESPONSE EXPLANATORY TEXT DATA PRIVACY (SCORE: 10.8/12.5 | RANK: 3/24) 1. Is a data protection law or 4 The main legislation is the Federal Personal Data Protection Act 2001 regulation in place? (Bundesdatenschutzgesetz, BDSG). However, a number of additional Data Protection Acts apply at the state level in Germany. Some sector specific regulations such as the Telemedia Act (Telemediengesetz, TMG) and the Telecommunication Act (Telekommunikationsgesetz, TKG) might apply if services fall into the regulation scope.
    [Show full text]
  • Privacy Protection Online II Free Speech and Media Law
    Privacy protection online II Free Speech and Media law MVV1368K Privacy and Personal Data František Kasl 1/26 Structure of the seminar • 1) Essays – Basic info + readings • 2) Topics – Do celebrities have any privacy? – Protection of whistleblowers – Free press as a watchdog • 3) Slides – Title – Question – Discussion - Information 2 Essays - Topics • Essay Deadline: 30 October, 8:00 AM • approx. 10 500 - 16 000 characters long (+ footnotes) = 5-8 pages • For further essay requirements see interactive sylabus • Presentation day (only students with Presentation No. 1): 31 October – Youtubers: Do modern celebrities have any privacy? – Protection of whistleblowers: A necessity in the transparent democratic society? – Free press as a watchdog and the obligation to protect sources: Are there any limits? 3 Obligatory readings • These readings are the prerequisite for the understanding of the concept of free speech and its interaction with privacy in media environment. – BYCHAWSKA-SINIARSKA, Dominika. Protecting the Right to Freedom of Expression under the European Convention on Human Rights. A Handbook for Legal Practitioners. Council of Europe. 2017. Available at: https://rm.coe.int/handbook-freedom-of-expression-eng/1680732814 – WESTKAMP, Guido. Private Life and the Margin of Appreciation, Introductory Note to the European Court of Human Rights: Alex Springer AG v. Germany and Von Hannover v. Germany (No. 2). International Legal Materials. 2012. Vol. 51, p. 631–684. Available at: https://heinonline.org/HOL/P?h=hein.journals/intlm51&i=677 (contains text of the cases) – SMITH, Robin Callender. From von Hannover (1) to von Hannover (2) and Axel Springer AG: Do Competing ECHR Proportionality Factors Ever add up to Certainty.
    [Show full text]