Tue, May. 13, 2014

Anti-Google Ruling has German Jurists Flustered

CK - Washington.   On May 13, 2014, the European Court of Justice invented an obligation to drop old newspaper announcements of legal actions from search engines under Article 4(1)(c) of European Union Directive 95/46, when it ruled on Google Spain SL, Google Inc. v. Agencia Espanola de Proteccion de Datos, Mario Costeja Gonzalez in favor of a data protection agency and a Spanish defendant who did not want the public to discover a 1998 notice of attachment on his property through the plaintiffs' search engine.

Among German lawyers and law commentators, a heated discussion followed quickly. Some argue that the decision serves privacy interests. Others believe that the court elevated data protection from a run-of-the-mill statute to a European constitutional principle that conflicts with the German and possibly other constitutions.

The court ruled, among other things, on the right of erasure and determined its applicability to search engines. The storage of data by search engines is data processing under Article 2, it ruled. Jurisdictionally, data processing occurs in the E.U. member state where the plaintiff maintains a branch or subsidiary even if such entity is limited to promotion and advertising services.

Even when the original publication was and remains lawful and available, a right of erasure can apply to a search engine while the linked-to publication may remain unerased. Unless public interests outweigh the defendant's interest in privacy and dignity, Articles 7 and 8 of the E.U. Charter may entitle him to seek erasure from the plaintiffs regardless of economic burdens imposed on them. The case is returned to the Spanish court to apply these principles to the facts.

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