From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Friday, 16 May 2014

Does the Google data protection ruling mean anything copyright-wise?

Earlier this week the Grand Chamber [this means 13 judges instead of the ordinary 3 or 5 judges] of the Court of Justice of the European Union (CJEU) delivered its shocking [yes, shocking] judgment in Case C-131/12 Google Spain and Google [press release available here] in which, contrary to the Opinion of Advocate General Jaaskinen [mentioned here], it ruled that: 

"[T]he activity of a search engine consisting in finding information published or placed on the internet by third parties, indexing it automatically, storing it temporarily and, finally, making it available to internet users according to a particular order of preference must be classified as ‘processing of personal data’ within the meaning of Article 2(b) [of the Data Protection Directive] when that information contains personal data and, second, the operator of the search engine must be regarded as the ‘controller’ in respect of that processing, within the meaning of Article 2(d)."

What does this mean?

That if, following a search made on the basis of a person’s name, the list of results displays a link to a web page which contains personal data [ie "any information relating to an identified or identifiable natural person"] on the person in question, that data subject may approach the operator of the search engine directly and seek the removal from such list. 

According to the Court, 

"the operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful."

Google Spain did not
just involve real estate ...
The background to the case, if there was ever the need to recall it, was the following.

In 2010 Mr Costeja González lodged a complaint with the Spanish Data Protection Agency (AEPD) against both the publisher of a daily newspaper (La Vanguardia), and Google Spain and Google. 

He was upset that, when an internet user looked for him on Google, the list of results would display links to two 1998 pages of La Vanguardia that contained the announcement for a real-estate auction organised following attachment proceedings for the recovery of social security debts owed by him.

Mr Costeja González requested - and obtained - that Google Spain and Google Inc. be required to remove or conceal the personal data relating to him, so that the data no longer appeared in the search results and in the links to La Vanguardia. The AEPD rejected the complaint against La Vanguardia, taking the view that the information in question had been lawfully published by it.

Google Spain and Google Inc. brought two separate proceedings before the National High Court to have the AEPD's decision annulled. The Spanish court stayed the proceedings and sought guidance from the CJEU. 

The result was this week's Google Spain ruling.

The judgment has already attracted a good deal of attention and comments, both in Europe [hereherehereherehere ...] and elsewhere, especially in the US [hereherehere ...].

Of course, being a data protection case, comments have focused on the perhaps little known right to be forgotten, also known as right to oblivion.

... but also the right
to be forgiven (and forgotten),
explains James
Being oblivious to anything some things if not copyright-related, this Kat tried to think and see whether this CJEU judgment might have something to say also copyright-wise, especially in the context of linking and the recent CJEU decision in Case C-466/12 Svensson [on which see herehereherehere].  

In that case, the CJEU held that "the provision on a site of a clickable link to a protected work published and freely accessible on another site has the effect of making that work available to users of the first site and that it therefore constitutes a communication to the public. However, since there is no new public, the authorisation of the copyright holders is in any event not required for such a communication to the public."

Let's imagine a case in which the links were to ordinary La Vanguardia articles rather than mere announcements of real estate auctions (yet containing the exact same information about Mr Costeja González), so that there would be no dispute as to whether copyright vested in those works. Let's also imagine (as it appeared to be the case in Google Spain) that the articles were "freely available" on La Vanguardia website.

Following Svensson, the provision of a hiperlink to those works would not require the authorisation of the copyright holder in that this activity would fall outwith the scope of Article 3 of the InfoSoc Directive. As such, the journalists who authored the pieces or La Vanguardia (should this be the copyright owner) could not prevent the provision of links to these pieces, not even on Google Search.

Claire pictured while dozing
thinking about possible
copyright implications
But could the provision of such links be prevented on data protection grounds? Of course. 

Following Google Spain, the provision of a hyperlink to those works would be an infringement of the Data Protection Directive should a search engine refuse to comply with the removal request of the person whose personal information is included in those articles.

What does all this mean? Besides the fact that data protection - rather than our dear copyright [also remember that Article 9 of the InfoSoc Directive states that this is without prejudice to provisions concerning data protection and privacy] - can now significantly restrict freedom of expression/information, it would seem that the outcome of Google Spain may permit achieving what would not be possible under Svenssonie (indirect) control over hyperlinks. 

A tip for copyright holders who do not want links to their works to appear on Google Search? 

Always include some personal information of third parties [not of yourself, as this would likely follow within the exception as per Article 7(a) of the Data Protection Directive] in your works so that - where copyright can't go - data protection will. After that, just make sure that those third parties become aware of this, and let them ask Google. Something will then likely happen ...

1 comment:

Francis Davey said...

I think (in fact I am sure) that overstates the Google Spain judgment by quite a bit. A number of factors came together: (i) the information linked to was very out of date and had little modern relevance; (ii) it appeared near the top of the first google search page; *for the data subject's name*; (iii) the individual was not a public figure (such as a politician); (iv) the information was embarrassing.

Linking to pages containing personal data where those links do not show up in a search for that person's name but for some other search is almost certainly a different matter.

Fact sensitive as always.

The other point is that merely linking to that data is not itself a breach of data protection law. In the UK the data subject would either have to refer the matter to the ICO (most likely) or send a formal s10 notice giving google 21 days to respond. A refusal could result in court action but not damages. There is no damages liability *solely* for failure to remove.

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