Privacy, Data Protection and Retention
Data Protection Commissioner v. Facebook (Schrems II)
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The Tribunal de grande instance de Paris ordered Google Inc. to remove links to a website which accused the applicant of being involved in sexual abuse involving a child.
The applicant, Mr. X, discovered that search results for his name on Google included a link to a blog which accused him of sexually assaulting a child. The website refused to remove the story. In response to a subsequent delisting request, Google said the information on the website regarding X was relevant and up to date and therefore its inclusion in search results was justified by the interest of the general public in having access to information. X appealed to the Tribunal. The claim was brought against Google France but Google Inc. intervened in the proceedings.
X argued that inclusion of the link violated privacy and data protection law as it named his profession and his employer alongside the accusation of involvement in child sex abuse in a way that was inadequate, unrelated, irrelevant and excessive. He argued further breaches of data protection law because his personal data had been distributed without prior authorization or notification prior to dissemination.
Google Inc. argued that the applicant had not demonstrated that the information was incorrect, and that delinking risked Google failing in its duty to contribute to the fight against child pornography. Google also argued that delisting would violate the rights of the author of the information, who had potentially acted as a whistleblower to legitimately inform the public on a sensitive subject.
Judge Marc Pinturault delivered the judgment. He began by dismissing the application against Google France because it did not directly or indirectly operate the search engine and could therefore not be considered a ‘data controller’ that was responsible for hits on the search engine. He held that the label ‘Google France’ has no other purpose than to alert the user that they are on the search engine for the French territory; it does not mean that this part of the search engine is run by the company ‘Google France’.
The Court noted the importance of the right to respect for private and family life, home and correspondence as protected under Article 9 of the French Civil Code, Article 8 of the European Convention on Human Rights, and Articles 7 and 8 of the Charter of Fundamental Rights of the European Union (the latter explicitly protecting personal data). The Court noted furthermore that the French Data Protection Act transposes the European Data Directive, and that it provides that personal data may be used without consent only if the interests and fundamental rights and freedoms of the individual are not disregarded, and that the individual concerned has the right to oppose to the use of his or her personal data. The Court held that it was necessary to strike the right balance between the fundamental rights of privacy and personal data protection on the one hand, and the right to freedom of expression and freedom of information, as enshrined in Article 10 of the European Convention on Human Rights and Article 11 of the Charter of Fundamental Rights of the European Union.
The applicant had complained of two links in particular. While with regard to the first, the Court held that the applicant had not established that it appeared in search results following his full name, for the second link the Court held that the statements complained of were severely intrusive and detrimental to his reputation. Not only did the website accuse him of committing sexual offenses on the internet to the detriment of minors, it also did so in a way that related directly to his employment. The website mentioned his job, employer and business address, and used highly pejorative terms like “scandal”, “sexual affair”, and “minor”, and appeared to be motivated by a personal grudge against him. The Court added that the applicant had no criminal convictions for the kind of behavior alleged or anything similar, and that the truth of the allegations made had not been established. The Court found that under these circumstances, Google had no valid reason to claim that the content complained of was likely to have resulted from ‘whistleblowing’ in a legitimate attempt to inform the public.
The Court concluded that the content of the website was manifestly unlawful and directly violated the right to privacy and protection of personal data, and granted an interim injunction ordering Google Inc. to delist or suppress the link to the website in question.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This judgment requires a search engine to remove links to a website when it cannot prove the truth of allegations made on that website. Thus, it places the search engine in the position of censor for search results rather than requiring an applicant to take action against the website itself.
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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