Privacy, Data Protection and Retention
Google Spain SL v. Agencia Española de Protección de Datos
Closed Contracts Expression
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A Russian Appellate Court reversed the First Instance Court’s decision and found that Google had been incorrect in failing to remove links that a Russian politician had requested be removed from search results of his name. The lower court had held that Google had complied with all the legislative requirements by ceasing to list the requested links in search results of the politician’s name. The Appellate Court found that the information contained in the links was false and discredited the politician’s honor, and held that Google was obligated to remove the links from search results of specific word combinations the politician supplied and was not limited to only removing the links from search results of his name.
On February 4, 2020, Valery Gartung, a Russian politician, filed a lawsuit against Google LLC as a search engine operator with a request to remove six links from search results under the provisions of the “right to be forgotten.” Google responded with a recommendation to address the request to the website owners directly. Gartung has served as a Member of the State Duma – the lower house of the Federal Assembly of Russia – since 1997 and represented the Party of Pensioners (2002-2005) and A Just Russia party (from 2007 onwards). He is also the Chairman of the Committee for the Protection of Competition. Gartug claimed the Google search engine had continued to list the links in question in its search results, thus “ignoring” the request he had made to Google for their removal. Gartung presented QuickTimePlayer recordings and screenshots to prove the search engine had not removed the links from search results. Referring to the data on the website of the registrar of domain names on the Internet by “Regional Network Information Center,” Gartung argued Google LLC was the appropriate defendant in this case since it operated the Google search engine, led its technical support and administration.
Google LLC is a technology company and the owner of the Google search engine with headquarters in California, the United States.
On September 16, 2019, the Etkulsky District Court rhad uled in favor of Gartung in Case No. 2-510/2019 in which Gartung sought a declaration that the information on the websites Gartung listed in that application (including the six links disputed in the present case) as false, discrediting Gartung’s honor and dignity, and prohibited for dissemination in the Russian Federation. The decision entered into force on October 22, 2019.
Federal Law No. 149-FZ “On Information, Information Technologies and Information Protection” dated July 27, 2006 (the Information Law) regulates the spread of information in the Russian Federation. Article 2 of the law defines the key terms used on the provisions to which the courts resort, including information system (P. 3), access to information (P. 6), provision of information (P. 8), information system operator (P. 12), Internet site (P. 13), Internet site page (P. 14), domain name (P. 15). The Information Law also addresses the “right to be forgotten.” Article 10.3 of the law titled “Responsibilities of a Search Engine Operator” imposes a responsibility upon search engine operators to cease listing search results at requests of citizens if search results provide access to information about the applicant that is “distributed in violation of the legislation of the Russian Federation,” “unreliable” and/or “irrelevant, no longer relevant to the applicant due to subsequent events or actions,” with the exception of information about criminally punishable acts, in relation to which the statute of limitations did not expire, and about crimes of individuals, where the criminal record was neither withdrawn nor expunged. Part 2 of Article 10.3 law outlines what an applicant’s request to a search engine operator must include, i.e., 1) surname, first name, patronymic, passport details, and contact information (telephone and/or fax numbers, e-mail address, postal address); 2) the information about the applicant that the applicant is requesting to remove from search results; 3) reference to the websites, where such information is located; 4) reasons for terminating the issuance of the links in question by the search engine operator; 5) the applicant’s consent to the processing of their personal data. Part 5 of the article states the search engine operator has to comply with the applicant’s request within ten business days by removing the disputed links from search results at search requests containing the name and/or surname of the applicant. Alternatively, Part 5 of the article obliges the search engine operator to provide the applicant with a reasoned refusal. Part 7 of the article states that the applicant has the right to initiate a lawsuit with the claim for the termination of the issuance of links they have requested the search engine to remove from search results, if the search engine has refused to comply with the request and the applicant finds that unjustified.
The First Instance Court – the Etkulsky District Court of the Chelyabinsk Region, Russia – issued a ruling against Gartung on May 27, 2021.
Judge V.D. Kinzin of the Etkulsky District Court of the Chelyabinsk Region delivered the Court’s decision. The main issue before the Court was whether Google as the search engine operator was non-compliant with Article 10.3 of the Information Law and thus violated Gartung’s “right to be forgotten.”
Gartung argued that, due to his 20-year service as a Member of the State Duma, the grounds of the initiated claim responded to his “high status of a parliamentarian of the Federal level” [p. 1]. Gartung maintained Google’s inaction had violated his rights and interests, as well as the laws of the Russian Federation, and emphasized he insisted on removing the names of the listed links from search results even in the case of those websites being blocked.
Google argued that the search engine operator was unable (due to, among other things, its technical inability) to block search results formulated in “a million of keyword combinations, apart from the surname, first name, and patronymic” [p. 2] of Gartung.
The Court outlined the provisions of the “right to be forgotten” under Article 10.3 of the Information Law, stressing the requirements for the claimant to follow in their application to a search engine operator.
The Court noted that Gartung referred to the listing of search results at the search requests that included more than merely his surname, first name, and patronymic. It held that Gartung had referred to such search requests that contained additional words, phrases, and partial domain names of the disputed links, “including spichka.press, chel.pro, paddock.pro, molotpravdu.com, news-sirotin.com, which were formed as a result of the addition of the surname, the name of the applicant and the domain name of the disputed web link” [p. 2]. The Court held that this did not support the grounds of Gartung’s claim since, according to Article 10.3 of the Information Law, the search request in question had to contain one’s surname, first name, and patronymic, which in Gartung’s case would be “Gartung V. K.” The Court stressed the law provisions did not provide for additional words, signs, and word-combinations, including domain names, in search requests for the search engine operator to take account of in its removal of disputed links from search results. Consequently, the Court noted that, at the search requests containing any word additions to “Gartung V. K.,” the search engine gave out the links indexed according to the surname, first name and patronymic, as well as the other keywords.
In addition to the above, the Court stressed that, in accordance with Article 10.3 of the Information Law, Gartung’s request to Google could only indicate the surname, first name, and patronymic (not the word-combination used by Gartung to retrieve a certain link) for the search engine operator to follow with testing whether the disputed link appeared in search results at a request containing only the surname, first name, and patronymic.
The Court emphasized that Google “provided Internet users with a free service for searching publicly available information on the Internet” [p. 3]. It elaborated on the indexing mechanism of the Google search engine – the mechanism also used by “any other similar search engine presented in Russia” [p. 3]. The Court stressed the Google search engine indexed – that is, processed website pages regularly and continuously in an automated way by a special computer system – the publicly available information of third party website administrators not owned by Google. The Court emphasized third parties uploaded information on the Internet independently from Google and they were independent in determining “the level of accessibility of the information” they uploaded and “the possibility or impossibility of indexing” that information by search engines [p. 3].
The Court held that, at the search request which contained only the surname, first name, and patronymic of Gartung, Google did not display the disputed links, and the information regarding Gartung was not available at those links. Relying on the conducted “direct inspection of the site pages on the Internet using the links indicated in the claim” and the resume of a Google software specialist, the Court concluded Google had correctly ceased listing the disputed links at search results [p. 3].
Accordingly, the Court held that the grounds for satisfying Gartung’s claim were absent.
Judicial Collegium for Civil Cases of the Chelyabinsk Regional Court consisting of presiding Davydova V.E. and judges Kuchina M.I. and Velyakina E.I. delivered the Court’s decision. The main issue before the court was whether the First Instance Court had applied the provisions of Article 10.3 of the Information Law correctly in its refusal to grant Gartung’s claim against Google.
Gartung argued the First Instance Court’s interpretation of Article 10.3 was wrong, as the linguistic analysis of the article – conducted and presented to the court – showed. He insisted that Google had to cease listing any search results that led to the information located at the listed website links, if the search request contained his name and/or surname. Gartung also submitted maintained the First Instance Court had disregarded the literal meaning of Part 5 of Article 10.3 and had ruled “based on a voluntary interpretation of the norm”, which contradicted both “the purposes of the legislative regulation [and] the grammatical rules of the Russian language” [p. 2]. He argued that the First Instance Court had applied the norms of the law incorrectly due to the fact that the text of the Court’s reasoning had been copied from Google’s claim and so the Court had violated the impartiality principle having taken Google’s position. Gartung emphasized the Court had “illegally refused to satisfy the motion to recuse the judge” [p. 2]. Gartung maintained the Court had violated the principles of both consistency and uniformity in judicial practice due to the fact that the same Court had earlier ruled with a contrary decision in a case of similar claims. Gartung also referred to the response he had received from Roskomnadzor – Russia’s Federal Service for Supervision of Communications, Information Technology, and Mass Media – which had identified Google’s violation of the Information Law for which the company had been prosecuted in various other cases before.
The Court cited Article 2 of the Information Law regarding the definitions of some of its key terms of information system, access to information, provision of information, information system operator, Internet site, Internet site page, and domain name. It also outlined the provisions of the “right to be forgotten” under Article 10.3, emphasizing the requirements for an applicant to follow in their application to a search engine operator, the obligations of the search engine operator with regard to the applicant’s request, as well as the applicant’s right to initiate a lawsuit against the search engine operator.
The Court disagreed with the First Instance Court’s reasoning that the provision of Part 5 of Article 10.3 required the search engine operator to only take into account search requests with the surname, first name, and patronymic of the applicant, excluding any additional words. The Court found that the provision did not contain such restrictions.
The Court also referred to the earlier Etkulsky District Court’s ruling in favor of Gartung when the Court had recognized the information on the disputed websites – including the ones disputed in the case in question – as false, discrediting his honor and dignity, and prohibited for dissemination in the Russian Federation. The Court stressed that Google provided the indexed data about the disputed information when Gartung tested it by searching his own name, despite the earlier Court’s ruling on the prohibition of the dissemination of that information. The Court emphasized that the search requests that had resulted in Google listing the disputed links had contained the surname, first name, and patronymic of the claimant and partially the domain names of the disputed web links […] but had not contained references to the disputed site pages themselves” [p. 4].
Referring to the fact that access to the disputed information sources had been restricted in accordance with Article 15.8 of the Information Law, the Court held that “the issuance of information about the page index sites on the Internet” containing the prohibited information in search results was still unlawful [p. 4].
Responding to Google’s reference to the judicial practice in refusing to satisfy other claims on the termination of the issuance of search result links, the Court distinguished those from the present case and stated that those cases had been based on “the claimants’ failure to prove the unreliability of the information, its inconsistency with reality and irrelevance, which could not be applied to the current case” as the information in question had already been recognized as false, discrediting the claimant’s honor and dignity, and prohibited for dissemination in the Russian Federation by the Etkulsky District Court on September 16, 2019 [p. 4]. The Court referred to another decision delivered by the Etkulsky District Court in case No. 515/2019 from October 3, 2019, upheld by the Appellate Court on January 28, 2020 and the Cassation Court on June 30, 2020. In that case, the Court had ruled against Google, thus satisfying Gartung’s request on the termination of the issuance of links to the information recognized by the Etkulsky District Court on June 26, 2019 as false, discrediting the claimant’s honor and dignity, and prohibited for dissemination in the Russian Federation.
The Court held that Google had not complied with the earlier judicial decision which had found the contested information to be false and discrediting by continuing to list the prohibited information in its search results. Thus, the Court concluded the First Instance Court’s ruling in the case could not “be recognized as based on the correct application of the law” [p. 5]. The Court reversed the ruling, finding in favor of Gartung and obliging Google operator to cease listing the disputed links in its search results.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court’s decision further contracts expression in Russia. The “right to be forgotten” has turned into a tool that politicians and businessmen use to hide publicly significant information about them. The links that Gartung had requested the Google search engine to remove from search results are not accessible. The First Instance Court’s ruling, however, discloses the domain names of the disputed links, which show that the links led to publications about Gartung’s alleged corruption (for instance, some if the domain names listed, if translated into English, contained such publication titles as “Valery Gartung is an Embezzler and Corrupt Official Who Pretends to Be an Oppositionist,” “The Hunter for Corrupt Officials – Delegate Valery Gartung – Is Bogged Down in Corruption Together with His Whole Family,” and “A Story of How Valera Gartung was Dealing Mercedeses”).
Two court cases preceded Case No. 2-3/2021, and a similar pattern took place. On June 26, 2019, the Etkulsky District Court ruled in favor of Gartung, having recognized 18 websites and 20 web pages listed by him as false, discrediting his honor and dignity, and prohibited for dissemination in the Russian Federation. Following the decision, on August 5, 2019, Gartung filed a request to the Google search engine operator on the termination of the issuance of links to those 18 websites and 20 web pages at search results. According to Gartung, Google did not comply with the request and he filed a lawsuit against the company. In Case No. 2-515/2019, on October 3, 2019, the Court ruled in favor of Gartung, ordering Google to remove the disputed links. The Court ruled on the basis of the law on the “right to be forgotten” under Article 10.3 of Federal Law No. 149-FZ. The Appellate Court – the Chelyabinsk Regional Court – upheld the First Instance Court’s order on January 28, 2020.
One regional review of the legal practice in application of “the right to be forgotten” titled “‘The Right To Be Forgotten’ Is Being Forgotten” argued that in the first year and a half after the law had gone into effect few citizens resorted to the provision through courts in the Ural federal region. A more recent review of the law claimed the “right to be forgotten” was not working in Russia and drew from examples of several politicians who had turned to the provision to remove controversial information about them to argue that the politicians had received more publicity and attention to the information they had intended to conceal. As MBK Media reports, politicians and members of the State Duma – the lower house of the Federal Assembly of Russia, as well as businessmen have frequently resorted to the “right to be forgotten”.
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