Wednesday, 14 May 2014

Google Spain Case Raises More Questions Than It Answers

I'm an enthusiastic supporter of greater control over your data. But I'm really struggling with the European Court of Justice ruling that you can stop a search engine linking to something lawfully published about you in your local newspaper's online archive.

The case in question concerned the appearance of someone's name in a local Spanish newspaper announcement for a real-estate auction connected with proceedings to recover social security debts 16 years ago. The individual concerned (openly named in the judgment, ironically) claimed that the proceedings had been "fully resolved for a number of years and that reference to them was now entirely irrelevant." He failed to obtain an order banning the newspaper from carrying the item in its online archive, but succeeded in getting Google Spain to remove any links to it.

But surely if it was lawful for the local newspaper to have published the item of data - and it remains okay for it to publish the data via its website - then it should be okay to allow someone to find it?

I mean, why stop at gagging Google's local site? Why not make local libraries cut tiny holes in their microfiche records?

On this point, the ECJ cited problems where multiple jurisdictions were involved, even though this was purely Spanish scenario:
"Given the ease with which information published on a website can be replicated on other sites and the fact that the persons responsible for its publication are not always subject to European Union legislation, effective and complete protection of data users [subjects?] could not be achieved if the latter had to obtain first or in parallel the erasure of the information relating to them from the publishers of websites."
But how could removing links to an item from a national search engine achieve "effective and complete protection" of the data subject when the same items are lawfully available via a national newspaper's online archive anyway? Surely a national problem such as this has to be dealt with at source, or not at all?

Another key issue is that the ECJ didn't seem to weigh up all the possible public interests against the particular individual's rights to 'respect for private life' and 'protection of personal data'. 

Surely, for example, there was some public interest in the publication of the notices of auction complained about, such as achieving a fair price for property being sold to pay a debt to the state? Perhaps if that requirement had been abolished you could make a case for requiring the deletion of public notices relating to them. But, absent their abolition, I'm not sure you can say it's "entirely irrelevant" that someone was mentioned in such a notice, even if that were years ago.

And is there not a public interest in being able to more readily find published material via search engines? Consider the huge variety of research processes that must now rely on search engines, from journalistic research, to employment checks, to official background checks. What holes will now emerge in such research processes? Will records be kept of all the links that search engines were told to remove? If so, where will those records be kept? Who will be allowed to access them? Aren't researchers now on notice that they should check individual newspaper archives for data that search engines aren't allowed to let you find? How many won't bother when they really should?

The problems with the judgment don't end there, as is demonstrated by the tortuous path the ECJ took to reach its result (explained here). 

All of this underlines the need for careful policy thought and regulatory clarity around these issues, rather than the celebratory gunfire heard in some quarters. This judgment raises more questions than it answers.


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