Privacy, Data Protection and Retention
Google Spain SL v. Agencia Española de Protección de Datos
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The Seventh Collegiate Circuit Tribunal of the Auxiliary Center of the First Region (Tribunal) granted the owner of a website amparo against a decision that a number of its URLs be de-indexed from Google Mexico. The Federal Institute of Access to Information and Protection of Data (FIAIPD) had issued a decision in favor of an individual who had exercised his right of opposition against the indexing of URLs on Google Mexico’s search engine that linked to a news article in which he is named. This decision was reached without submissions being made by the representatives of the website’s owner. The website’s owner presented a writ of amparo against the decision, claiming it violated her right to freedom of expression and her due process right to be heard in matters affecting her rights. The Tribunal agreed that the website owner’s right to be heard had been infringed, and it ordered the FIAIPD to suspend its original decision and reopen the data protection proceedings so the owner could exercise her right to be heard.
On January 26, 2015, the Federal Institute of Access to Information and Protection of Data (FIAIPD) issued a decision in favor of an individual who had brought data protection proceedings against Google Mexico. This individual opposed the indexing in Google Mexico’s search engine of URLs linking to a news article containing his name, and which had been published on the website www.revistafortuna.com.mx. The individual also requested the deletion of his personal data from Google Mexico’s databases. The FIAIPD ordered Google Mexico to make effective the individual’s right to opposition by de-indexing the URLs listed by the applicant so that they could no longer be found through a search of the applicant’s name on the Google Mexico search engine. It also ordered Google Mexico to delete the individuals’s personal data from its databases in order to make effective his right to deletion. These proceedings were conducted without input from the representatives of the website’s owner.
Representatives of the magazine “Revista Fortuna, Negocios y Finanzas”, the alleged owner of the www.revistafortuna.com.mx domain name, brought a writ of amparo against the decision of the FIAIPD. The alleged representatives of the magazine claimed the FIAIPD decision was in violation of the Mexican Constitution and the American Convention on Human Rights because: (1) Their right to due process had been infringed as they had not been heard in the proceedings even though the FIAIPD decision had the effect of hindering access to their article in interference with their right to freedom of expression (they claimed to have been unaware of the proceedings until February 1, 2015, days after the decision had been issued); (2) their right to freedom of expression had been infringed upon by the order to de-index the URLs which constituted a form of prior censorship; (3) the decision, in attributing liability to an intermediary (the search engine provider), created incentives for private censorship and hindered the free flow of information in violation of the Mexican State’s duty to protect freedom of expression; (4) the decision did not constitute a necessary and proportionate restriction on the right to freedom expression as the de-indexed news story was of public interest for which access to it should prevail over an individual’s rights to opposition and deletion.
The writ of amparo was decided by the Fifteenth District Judge on Administrative Matters of the Federal District on February 10, 2016. The Judge considered that the applicants had not sufficiently proven their standing to act on behalf of the magazine, nor that the magazine was the owner of the www.revistafortuna.com.mx domain. Based on this, the Judge concluded that they did not have standing to challenge the FIAIPD decision through amparo.
The applicants then requested a revision of the Judge’s decision. The revision was conducted by the Seventh Collegiate Circuit Tribunal of the Auxiliary Center of the First Region, which issued its decision on July 7, 2016.
The issues for the Seventh Collegiate Circuit Tribunal of the Auxiliary Center of the First Region (Tribunal) to decide were (i) whether the applicants had standing to challenge the Federal Institute of Access to Information and Protection of Data (FIAIPD) decision and, (ii) whether the decision had violated the constitutionally and internationally recognized rights to due process and freedom of expression.
The Tribunal began its analysis with an extensive review of Mexican probatory law, after which it concluded that the Fifteenth District Judge on Administrative Matters of the Federal District had erred in his finding that none of the applicants had standing to challenge the FIAIPD decision. According to the Tribunal, standing was not proven for all applicants but it was sufficiently proven in respect of one of the applicants.
Having found one of the applicants to have standing, the Tribunal proceeded to review the constitutionality of the FIAIPD decision. The Tribunal concluded that the FIAIPD decision had violated the applicant’s right to be heard as a decision affecting her fundamental rights had been adopted without her participation. The Tribunal reasoned that the owner had the right to intervene and express her views, regardless of whether her right to freedom of expression outweighed the data subject’s right to protection of his personal data.
The Tribunal considered it unnecessary to analyze the applicant’s arguments concerning freedom of expression as their finding of a violation of her right to be heard was sufficient to grant the amparo relief.
Thus, the Tribunal granted the amparo and ordered the FIAIPD to suspend its original decision and reopen the data protection proceedings so the applicant could exercise her right to be heard.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression by acknowledging that website owners have a right to participate in “right to be forgotten” proceedings that could result in the de-listing of their website from search results. Recognizing that the website owner should be heard in these types of cases sits in stark contrast to the EU Guidelines issued in response to the Google Spain judgment, which state that “[s]earch engines should not as a general practice inform the webmasters of the pages affected by de-listing of the fact that some web pages cannot be [accessed] from the search engine in response to a specific name-based query. There is no legal basis for such routine communication under EU data protection law.”
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