Case Summary and Outcome

The First Section of the Administrative Chamber of the National Audience of Spain annulled a decision issued by Agencia Nacional de Protección de Datos (AEPD) that ordered Google to limit or block access to opinions on the Internet through a web search when using a well known doctor’s name. The contested information referred to comments on online forums that criticized one Doctor Edmundo. Edmundo requested the AEPD to block his personal data, which the AEPD granted. Google initiated a legal action seeking the annulment of this decision. The First Section of the Administrative Chamber of the National Audience of Spain held that in this case, when weighed against the right to be forgotten, freedom of expression prevailed since web users and potential patients have a legitimate interest in accessing information about a prominent doctor in the medical field.

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Facts

On 13 June 2014, Don Edmundo requested Google to delete his personal data from the search engine. The information pertaining to Edmundo was hosted on a page called “my back hurts”, which page aimed at sharing user experiences related to spinal cord ailments [p. 3]. The comments Edmundo wished to eliminate pertained to the experience of a user, an erstwhile patient of Doctor Edmundo, a specialist in spinal endoscopic surgery. The user criticized and referred to the doctor as a “scam artist” and a “scoundrel”.

Google denied the deletion request on July 14, 2014, arguing that the “contested URLs refers to matters of substantial interest to potential clients of [the doctor’s] professional services.” Thus, it was justified, in the public interest, that people have access to the document through a web search using [Edmundo’s] name” [p. 2].

Edmundo filed a request against Google before the Agencia Nacional de Protección de Datos, the Spanish Data Protection Agency, demanding that access to the contested information shouldn’t be provided on the search engine upon typing his name. On May 20, 2015, the AEPD issued a decision in favor of Edmundo, arguing that there was no public interest in the information and that “the information has not been proven to be true” [p. 3].

Google appealed this administrative decision. The AEPD upheld its decision on September 24, 2015, arguing that “freedom to express opinion was not affected by the deletion of search results to the concerned web link because the information was still available at the source” [p. 3].

On 4 April 2016, Google INC. initiated a judicial proceeding against the AEPD, seeking annulment of the AEPD’s administrative decision. The First Section of the Administrative Chamber of the National Audience issued a decision on the case on May 11, 2017, annulling the AEPD ruling.

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Decision Overview

Justice María Nieves Buisan García delivered the opinion for the First Section of the Administrative Chamber of the National Audience (Tribunal). The main issue for the Tribunal was to determine whether “the right to data protection of Doctor Edmundo must prevail over the right to information, freedom of expression and the general interest of the public to access the information”, considering the nature and public relevance of the information which AEPD had blocked [p. 8].

According to Google, the decision issued by the AEPD breached Article 20.1 of the Spanish Constitution, Article 10 of the European Convention on Human Rights (ECHR), Article 11 of the Charter of Fundamental Rights of the European Union and Article 19.2 of the International Covenant on Civil and Political Rights (ICCPR) [p. 4]. The information in relation to the Doctor which was blocked by AEPD was of public interest. Google argued that Doctor Edmundo is an active medical professional who has appeared in “multiple reports and news articles related to spinal cord health” [p. 3]. In light of his professional trajectory and the fact that Edmundo still is an active doctor providing medical services through a private clinic, Google claimed, he is exposed to public opinion, and potential patients have a right “to find not only positive feedback, but also negative criticism, to decide whether to opt for a surgery with him” [p. 3].

Google also held that the contested information was protected by freedom of expression, since the comments made online “are not factual attributions but rather opinions, criticisms or judgments on the professionalism of a doctor” [p. 4]. As such, there is no room to judge on the veracity  of the information.

For these reasons, Google believed that the AEPD breached the right of public to conduct investigations, search and get information in a free and unhindered manner about the professional care of persons who work in the field of healthcare in general and about Dr. Edmundo in particular [p. 4].

On the contrary, the AEPD argued that the truthfulness of the contested information is a valid criterion to be considered. The indiscriminate dissemination of information, whose veracity was questionable, permitted the AEPD to rule that freedom of expression must give way to the protection of the privacy of the affected person [p. 5].

The Tribunal considered the right to data protection and freedom of expression, as discussed in the national case laws. Following the jurisprudence laid out by the Constitutional Tribunal of Spain (STC 292/2000), the Court explained that data protection “is not limited to intimate data of a person, but to any type of data whose knowledge or use by thirds parties may affect their rights” [p. 6].

The Tribunal referred to another decision by the Constitutional Tribunal (STC 23/2010) to explain that freedom of expression protects “thoughts, beliefs, opinions, value judgements and criticisms to others, even when those can be unpleasant, disturbing, or displeasing to the person they address to. Pluralism, tolerance, and openness, without which there is no democratic society, require it” [p. 6].

Following the precedent of the Constitutional Tribunal (STC 165/1987), the Tribunal also clarified that freedom of expression is a wider concept than the right to information, since the first refers to ideas, opinions, or subjective value judgments which by their abstract nature may not  be proven, and whose purpose is “not to establish facts or state objective data” [p. 6].

The Tribunal explained that in cases where the right to data protection and freedom of expression are at logger heads, it is necessary to find a fair balance between “the legitimate interest that internet users have in accessing such information through a query using a person’s name and the fundamentals rights of the concerned person who is seeking to enforece his right to be forgotten” [p. 7]. As per the Tribunal, the role which the information in relation to an interested party played in public life, may justify interference with the fundamental right of a person.

Upon analyzing the present case, the Tribunal considered that the contested comments made online “don’t refer to the personal life of Mr. Edmundo, rather they relate exclusively to his professional life and his role as a specialist in endoscopic spinal cord surgery”” [p. 8].

The Tribunal then proceeded to cite the Guidelines on the Implementation of the Court of Justice of the European Union Judgment in Google Spain and Inc v. AEPD and Mario Costeja C-131/12. According to this document, in case of data processing, it is important to differentiate between private life, public life and professional life. The availability of information in search results becomes more acceptable in cases where the least information is revealed about a person’s private life. Contrary to this, information is more likely to be relevant for the public if it relates  to the professional life of the concerned party” [p. 8].

Considering the aforesaid legal background, the Tribunal found merit in Google’s arguments. The Tribunal held that web users had a legitimate interest in accessing the contested information, since the doctor “has a certain public notoriety in the healthcare industry, given that he’s a specialist in a particular method of intervention of the spinal cord and is the director of the so-called Morgenstern Institute of endoscopic laser spinal cord surgery” [p. 9]. For these reasons, potential patients have a right to know about “the experiences and opinions of the erstwhile patients of the doctor” [p. 9].

The Tribunal also opined that the comments made on the webpage, which the AEPD ordered to block, were mere opinions rather than information about Dr. Edmundo. According to the Tribunal, the scope of protection of the Spanish Data Protection Act alludes to information but doesn’t include opinions. Taking into consideration the jurisprudence of the Constitutional Tribunal (STC 51/1989), the Tribunal argued that freedom of expression protects offensive expressions in cases where the information disseminated, or the criticisms made, reduce its offensive meaning.

The Court concluded by relying on the precedent of the Spanish Supreme Tribunal (STS 545/2015) as per which right to be forgotten “does not allow everyone to build their own past, forcing web page editors, or search engine managers, to eliminate personal data, when it’s associated with negative facts” [p. 10].

In view of the above reasons, the Tribunal annulled the decision issued by the AEPD.

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