Privacy, Data Protection and Retention
Lillo-Stenberg v. Norway
On Appeal Mixed Outcome
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
Following the ECJ and its doctrine on the right to be forgotten, the Barcelona Court of Appeals partially granted don Domingo’s claim in regards to holding Google Spain responsible for the lack of compliance when processing his personal information.
Don Domingo presented a case against three companies for their involvement in the processing of his personal information through their search engines: Telefonica, Yahoo, and Google Spain. He claimed that the results provided by their respective search engines linked to information regarding a 1999 pardon of his 1981 conviction regarding drug trafficking.
Don Domingo claimed his rights to honor, intimacy, and to his personal image were affected, and that his business has been ruined by the results, basing his plea on Spanish Law 1/1982 on Civil Protection of the Right to Honor, Personal and Family Intimacy and to Own Image, and Law 15/1999 on Protection of Personal Data.
The plaintiff filed a complaint before the Spanish Data Protection Authority which in turn, requested the search engines to take down the information.
The Court considered that the right to honor and intimacy (although the fact that a crime was committed made it a matter of public interest) were affected, but highlighted that the nucleus of the controversy lays on the responsibility of search engines in regards to the protection of personal data.
Following the decision of the ECJ on the right to be forgotten (C-131/12), the Court sustained that search engines process personal data and thus must be considered responsible for such processing; and that to comply with the EU’s Data Protection Directive, search engines are obliged to promptly remove the results when certain requirements are met, which according to Spain’s law on Information and Electronic Commerce Services, are: a) that the search engines have knowledge that the information is illicit or affects the assets or rights of third parties with possibility of compensation; or b) that they have knowledge of a decision by a competent authority that the information meets the previous criteria.
The Court dismissed the claim against Telefonica, since their search engine, Terra, did not present any results regarding don Domingo; and against Yahoo as well, since they responded promptly to the decision of the Spanish Data Protection Authority and timely removed the results.
In regards to Google’s defense, and also in line with the ECJ (C-131/12), the Court dismissed the fact that Google Spain has no intervention in the company’s search engine activities, since it is dedicated to advertising and commercial areas of the business. Thus, this releases Google Spain from its responsibility.
That being said, the Court proceeded to analyze whether there had been an infraction by the one responsible of the processing of the data at hand and if that lack of compliance generates a right to compensation. In regards to the first checkpoint, and once again, the Court cited the ECJ (C-131/12) in determining that even truthful information regarding an individual can, under date circumstances, turn inadequate or irrelevant, and its removal can be requested by the one affected; triumphing the rights of the individual over the economic rights of the responsible search engine and over the right of the public to this information, with the exception of the individual being a public figure. However, the Court reasoned that this was not the case of don Domingo. Even though the information concerned a crime, and thus could be considered of public interest, the Court considered, in accordance with EU Directive 95/46/EC and the Spanish Law on Protection of Personal Data, that because he had been pardoned and this was published on the Official State Bulletin in 1999, the information was no longer pertinent and should not appear on searches conducted in 2010.
Although the Court granted don Domingo’s claim, it limited the amount he can receive as compensation, understanding that his business was not affected by the information publicly available, and while granting moral damages, it constricts the time frame for which Google must respond to the 10 months between the date the company had effective knowledge of the illicitness or damaging nature of the information, and the date in which Google took down the results as requested.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Although it could be understood that search engines are being forced to take down results and deny the public of information, especially if data regarding crimes is viewed to be of public interest; this decision can also be interpreted as an advance from a local Court, which follows the ECJ, and rules on a subject that was not treated before and could provide a new way on how to balance individuals’ rights and data processing companies’ in the news era.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Data Protection Directive
Articles cited 2, 4, 7, 8, 12, 14, 22, 23.1
Articles 4, 18, 19
Case significance refers to how influential the case is and how its significance changes over time.
Let us know if you notice errors or if the case analysis needs revision.