Privacy, Data Protection and Retention
Data Protection Commissioner v. Facebook (Schrems II)
Closed Contracts Expression
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The Supreme Court of Spain recognized the right to be forgotten of a public official whose name appeared in Google’s search results related to partially inaccurate facts published by the newspaper El País. In 2007, El País published an article claiming that the official participated in an illegal wild boar hunt for which he was fined. The official successfully appealed the fine, and subsequently sought to de-index El País’ article from Google’s search results. Google refused citing freedom of information. The Supreme Court ruled for the official, arguing that in this case, the right to the protection of personal data superseded the right to information because the content of the search result was inaccurate.
In November 2007, the Spanish newspaper El País published an article on the participation of three public officials from the Galician Administration in a wild boar hunting. The article recounted that agents from the Environmental Agency caught the officials participating in poaching. In addition, the article claimed that the officials were fined for having parked their vehicle in the middle of a forest track, which was a breach of the Fire Law in Galicia. On January 15, 2009, the Director General of Nature Conservation fined the officials and revoked their hunting licenses for five years. This decision was upheld by the Rural Environment Advisor of Galicia on November 20, 2009.
One of the officials, who was the Chief Forest Officer of the Galician regional government and whose name was not disclosed, appealed the decisions made by the Director General of Nature Conservation and the Rural Environment Advisor of Galicia. The official argued that the information in the article was false because the three officials had met with various hunters to form a group previously authorized to exercise the hunt in a hunting zone called Pena Maior. In other words, they were not poachers because they had received permission. On June 28, 2012, the Contentious-Administrative Chamber of the Superior Court of Justice of Galicia ruled in favor of the official and overturned the 2009 decision by the Rural Environment Advisor of Galicia.
The official subsequently filed a request before the Spanish Agency of Data Protection for the cancellation of personal data contained in the search engine operated by Google LLC. The official sought protection under section 18.4 of the Spanish Constitution, which states that the “law shall limit the use of data processing in order to guarantee the honor and personal and family privacy of citizens and the full exercise of their rights.” He also argued that under Article 6.4 of Organic Law 15/1999 of December 13 on the Protection of Personal Data, he could exercise his right to be forgotten because he had a compelling and legitimate reason. The request was granted by the Spanish Agency of Data Protection on April 14, 2015.
Google LLC appealed the decision of the Spanish Agency for Data Protection before the First Section of the Contentious-Administrative Chamber of the National Court (“Audiencia Nacional”). This court dismissed the lawsuit on July 18, 2017, on the grounds that the plaintiff’s right to be forgotten regarding personal data should prevail over the right to access of information because the information disseminated through the search engine was untrue.
Google LLC appealed to the Supreme Court of Spain citing violation of the right to information guaranteed by Article 20 of the Spanish Constitution. The company argued that the right to be forgotten should not be applied to cases in which the information is of public interest and when it is impossible to assess its veracity. Ultimately, Google argued that the right to be forgotten cannot prevail over the right to information. Moreover, Google LLC argued that the judgment of the National Court placed it under the burden to determine the truth of the information more rigorously than that required of the original author of the article.
In making its argument, Google referenced: Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 11 of the Charter of Fundamental Rights of the European Union, Article 19 of the Universal Declaration of Human Rights, and Article 19.2 of the International Covenant on Civil and Political Rights.
The question before the Supreme Court was whether the official’s request to de-index El Pais’ article was justified on the grounds that the information was inaccurate and did not meet the truthful information requirement under Article 20.1(d) of the Spanish Constitution.
In order to answer this question, the Supreme Court examined two parts of the 2017 National Court judgment. First, it had to assess whether the National Court adequately balanced the right of information with the right to be forgotten, the right to privacy, and the right to honor in its decision. Second, the Court was required to determine if the National Court properly applied the truthfulness test of information to Google.
Balancing the Rights:
The Court began by describing the related jurisprudence on the right to information, the right to protect one’s own image and personal data, and the right to be forgotten online. Article 20.1(d) of the Spanish Constitution recognizes and protects the right to freely communicate and receive true information by any means of dissemination. Article 18.4 of the Constitution allows for the law to “limit the use of information technology to guarantee the honor and personal and family privacy of citizens and the full exercise of their rights”. The Court recognized the right to be forgotten as an inherent power to protect personal data and therefore a fundamental right. Citing the jurisprudence of the Court of Justice of the European Union, the Court noted that the right to be forgotten was not absolute and had to be balanced against other rights such as access to information.
To determine if Google violated the right to the protection of personal data, the Court analyzed the public interest of the information at hand and its impact on the official’s public image.
In terms of whether information was of public interest, the Court noted that public officials and figures voluntarily accepted the risk that their personal rights, such as privacy and reputation, will be affected by criticism or adverse opinions, given the relevance of the activities they perform within society. The Court reasoned that although the public official held the position of Chief Forest Officer, his actions were not notorious nor was he in a government car. Furthermore, the official did not play a prominent role in the public life of Galicians, which dilutes the public interest of the article. The article has also lost relevance since 12 years have passed.
To determine the information’s effect on the official’s public image, the Court referred to the Court of Justice of the European Union’s interpretation of Directive 95/46/EC on the protection of individuals with regard to the processing of their personal data and its circulation. The interpretation argued that the processing of personal data by an Internet search engine can significantly affect the fundamental rights of privacy and protection of personal data because anyone can search information on an individual, therefore affecting various aspects of that individual’s private life. The Court of Justice confirmed the need to balance the personal rights of privacy and data with the right to information for Internet users by examining the information in question, its sensitive nature, and the effect on the individual as well as public interest.
The Court held that according to the European Court of Human Rights a restriction on information that is already public may be justified in certain circumstances, such as to “prevent the spread of more aspects of the private life of an individual that are not related with the political or public debate on issues of general interest” [p. 18]. Hence, the right to privacy can be invoked even if the information has already been made public. Moreover, the European Court of Human Rights emphasized that the Internet differs from the press and print media, because of its ability to store and disseminate information for a lengthier period of time. Hence, the Internet and its content is more likely to violate the right to privacy, respect for private life, and other fundamental rights.
Veracity of Information:
The second component of the debate that the Supreme Court had to analyze was the truthfulness requirement of Article 20.1(d) of the Spanish Constitution.
If the information disseminated by digital means is truthful and refers to facts of public interest, then freedom of information prevails over the right of reputation. The Court clarified that the requirement of veracity does not require the facts to be literally true, but at the very least the information should have been obtained through diligent and investigative work [p. 13]. Hence, even false information is covered by the freedom of information if a journalist investigated diligently and if the false information does not affect the subject of the article.
The Court determined that the information in El Pais’ article failed the veracity requirement. The judgment of the Contentious-Administrative Chamber of the Superior Court of Justice of Galicia on June 28, 2012, proved that the official had permission to hunt wild boars. On April 14, 2015, the Spanish Agency for Data Protection confirmed that the hunt was lawful. Since the information was inaccurate and affected the underlying message of the article, the Court determined that the case did not meet the requirement of veracity that must be met to consider the exercise of freedom of information.
Hence, the Court ruled out that the National Court applied the test of veracity of the information more rigorously to Google compared to the editor of the El Pais news article. The previous judgment tested the accuracy of information in terms of the content, which justified the decision of the Spanish Agency for Data Protection.
The Supreme Court confirmed that the decision of the National Court was not unreasonable or arbitrary and did not violate Article 20.1(d) of the Spanish Constitution. Taking into account the public relevance of the information, the sensitive nature of the information, and the inaccuracy of the information, the Court determined that the official’s right to personal data, right to privacy, right to honor, and the right to be forgotten prevail over the right to information.
Consequently, the Supreme Court dismissed Google LLC’s appeal.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment contracts the right to freedom of expression in Spain because it required Google and other search engines to de-index information that was public, even if outdated. When the article was written in 2007, the journalist truthfully reported on information that was publicly available at the time, including the fact that the officials were fined for an illegal hunt. Only in 2012, did a court rule that the officials did not break any laws during their hunt. Therefore, the decision removes information that was accurate at the time of publication and of public interest.The Court also seems to ignore the principle that public officials must be tolerant of critical speech, even when it is offensive. Moreover, the Court’s ruling places an individual’s right to be forgotten and right of privacy over access to information and the freedom of expression of media outlets.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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