EU Court of Justice rules a «right to be forgotten» under the EU Data Protection Law

21. Mai 2014 – According to a recent decision of the EU Court of Justice (case C-131/12, dated 13 May 2014), individuals have a "right to be forgotten" under the Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (EU Directive).

In the case at hand and based on a request by an individual residing in Spain, the Spanish Data Protection Authority ordered Google Inc. to remove personal data relating to this person from its index and to prevent access to such data in the future.

Based on a request for preliminary ruling from the Audiencia Nacional of Spain, the Court decided that:

  • The activity of an internet search engine consisting in finding information on the internet published by third parties and indexing qualifies as "processing of personal data" if the information contains personal data pertaining to an individual;
  • The operator of the internet search engine is deemed the «controller» in respect of its processing activities;
  • Even if the internet search engine is not operated in an EU member state, the processing by the operator is carried out in the context of the activities of an establishment of the controller in an EU member state, if the operator sets up a branch or subsidiary in an EU member state which promotes and sells advertising space offered by the internet search engine and if the activities are oriented towards the inhabitants of an EU member state;
  • As a rule, the right of an individual to request that information – even if accurate – about him/her be removed from the index of an internet search engine and from the search results overrides the interest of the general public in having access to such information and the economic interest of the operator of the internet search engine.
  • Only for particular reasons (for example the role played by the individual in the public) could there be an overriding public interest that this information remains available in the indexes and as search results and does not need to be removed despite a request by the individual;
  • The obligation of the operator of a search engine to remove from the list of results links to webpages published by third parties also applies in a case where such information is not deleted beforehand or simultaneously from those third party websites and applies even if the publication on those webpages is lawful.

Based on the decision of the Court, the Audiencia Nactional in Spain will now have to decide if, in the case at hand, particular reasons exist that create an overriding public interest for maintaining the indexes and search results as regards the individual having requested the removal. In the absence of such particular reasons, the indexes and search results will have to be removed by the search engine provider.

Even if the decision of the EU Court of Justice does not bind Swiss courts, it may directly impact Swiss based operators of internet search engines which have activities in the EU. Furthermore, even if the legal basis is not the same (the EU Directive does not apply in Switzerland), Swiss courts could be tempted to follow the (too) restrictive argumentation of the EU Court of Justice if a similar request for removal were made against an operator of an internet search engine under the Swiss Data Protection Law.