Privacy, Expression and the World Wide Web. Shall we Forget?

Google v Spain is an important judgment of the Court of Justice of the European Union which has important implications for the rights of individuals’ privacy, the Court’s use of a purposive method of interpretation, the regulation of search engines based outside of the EU, the interaction between the Treaty on the Functioning of the European Union, the Charter of Fundamental Rights of the European Union and European Convention on Human Rights, and international laws. The case establishes that operators of search engines located outside of the EU may be subject to the EU data protection laws (Directive 95/46/EC) and individuals, in certain circumstances, have the right to request that links to personal data held on-line be removed

Data Privacy and Dignitary Privacy: Google Spain, the Right To Be Forgotten, and the Construction of the Public Sphere

The 2014 decision of the European Court of Justice in Google Spain controversially held that the fair information practices set forth in European Union (EU) Directive 95/46/EC (Directive) require that Google remove from search results links to websites that contain true information. Google Spain held that the Directive gives persons a “right to be forgotten.” At stake in Google Spain are values that involve both privacy and freedom of expression. Google Spain badly analyzes both. With regard to the latter, Google Spain fails to recognize that the circulation of texts of common interest among strangers makes possible the emergence of a “public” capable of forming the “public opinion” that is essential for democratic self-governance. As the rise of American newspapers in the nineteenth and twentieth centuries demonstrates, the press underwrites the public sphere by creating a structure of communication both responsive to public curiosity and independent of the content of any particular news story. Google, even though it is not itself an author, sustains the contemporary virtual public sphere by creating an analogous structure of communication. With regard to privacy values, EU law, like the laws of many nations, recognizes two distinct forms of privacy. The first is data privacy, which is protected by the fair information practices contained in the Directive. These practices regulate the processing of personal information to ensure (among other things) that such information is used only for the specified purposes for which it has been legally gathered. Data privacy operates according to an instrumental logic, and it seeks to endow persons with “control” over their personal data. Data subjects need not demonstrate harm in order to establish violations of data privacy. The second form of privacy recognized by EU law is dignitary privacy. Article 7 of the Charter of Fundamental Rights of the European Union protects the dignity of persons by regulating inappropriate communications that threaten to degrade, humiliate, or mortify them. Dignitary privacy follows a normative logic designed to prevent harm to personality caused by the violation of civility rules. There are the same privacy values as those safeguarded by the American tort of public disclosure of private facts. Throughout the world, courts protect dignitary privacy by balancing the harm that a communication may cause to personality against legitimate public interests in the communication. The instrumental logic of data privacy is inapplicable to public discourse, which is why the Directive contains derogations for journalistic activities. The communicative action characteristic of the public sphere is made up of intersubjective dialogue, which is antithetical both to the instrumental rationality of data privacy and to its aspiration to ensure individual control of personal information. Because the Google search engine underwrites the public sphere in which public discourse takes place, Google Spain should not have applied fair information practices to Google searches. But the Google Spain opinion also invokes Article 7, and in the end the decision creates doctrinal rules that are roughly approximate to those used to protect dignitary privacy. The Google Spain opinion is thus deeply confused about the kind of privacy it wishes to protect. It is impossible to ascertain whether the decision seeks to protect data privacy or dignitary privacy. Google Spain is ultimately pushed in the direction of dignitary privacy because data privacy is incompatible with public discourse, whereas dignitary privacy may be reconciled with the requirements of public discourse. Insofar as freedom of expression is valued because it fosters democratic self-government, public discourse cannot serve as an effective instrument of self-determination without a modicum of civility. Yet the Google Spain decision recognizes dignitary privacy only in a rudimentary and unsatisfactory way. If it had more clearly focused on the requirements of dignitary privacy, Google Spain would not so sharply have distinguished Google links from the underlying websites to which they refer. Google Spain would not have blithely outsourced the enforcement of the right to be forgotten to a private corporation like Google

Analýza praktických dopadů rozhodnutí Soudního dvora EU ve věci Google Spain

Článek se věnuje analýze praktických dopadů rozhodnutí rozhodnutí Soudního dvora EU ve věci Google Spain. Postupně rozebírá skutkový stav případu, položení předběžné otázky a klíčové aspekty rozhodnutí samotného - tedy postavení vyhledávače jako správce osobních údajů, otázky místní příslušnosti a jeho praktickou využitelnost.This paper focuses on analysing practical consequences of the CJEU Google Spain decision. It gradually examines the facts of the case, a preliminary question and the key aspects of the decision itself - the position of search engines as an administrator of personal data, issues of territoriality and the possibility for the use in praxis

RIGHT TO BE FORGOTTEN – INDEED A NEW PERSONAL RIGHT IN DIGITAL EU MARKET?

The article analyses the judgment in case Google Spain, C-131/12, in which the Court of justice of the EU (CJEU) decided that search engines do bear certain part of a responsibility to protect privacy, although that they are not the author of certain information, nor they change the substance of such an information. The sole argument that they help searching certain information is, for the CJEU, enough to nclude them in the circle of persons, who are not without responsibility regarding different internet services. The decision has huge effects and as it is seen from the literature, much bigger and more comprehensive than the CJEU wanted. The article argues that this decision does not mean (not yet) a right to be forgotten as it could be understood from the outset. Namely, certain information, which somebody wanted to have removed, is still there, somewhere in the internet, just we cannot fi nd it any more (unless we know the internet address or other criteria, not the name, which could help us find it)

RIGHT TO BE FORGOTTEN – INDEED A NEW PERSONAL RIGHT IN DIGITAL EU MARKET?

The article analyses the judgment in case Google Spain, C-131/12, in which the Court of justice of the EU (CJEU) decided that search engines do bear certain part of a responsibility to protect privacy, although that they are not the author of certain information, nor they change the substance of such an information. The sole argument that they help searching certain information is, for the CJEU, enough to nclude them in the circle of persons, who are not without responsibility regarding different internet services. The decision has huge effects and as it is seen from the literature, much bigger and more comprehensive than the CJEU wanted. The article argues that this decision does not mean (not yet) a right to be forgotten as it could be understood from the outset. Namely, certain information, which somebody wanted to have removed, is still there, somewhere in the internet, just we cannot fi nd it any more (unless we know the internet address or other criteria, not the name, which could help us find it)

The European Commission’s public consultation on the role of publishers in the copyright value chain: a response by the European Copyright Society

No abstract available

CREATe public lectures on the proposed EU right for press publishers

Presents the edited text of lectures by Hoppner and Xalabarder arguing in favour and against the proposal to extend Directive 2001/29 arts 2 and 3 to press publishers, providing them with the exclusive right to publish journalistic material online for a period of 20 years. Discusses the controversies surrounding two similar initiatives in Germany and Spain

Social networking: the application of the data protection framework revisited

This article will revisit the social media issues in the context of the Data Protection legislative framework and the extent to which the notion of 'data controller' could extend to individuals. The main contribution is that the discussion will add to the debate on the blurring of the distinctions drawn between public and private spheres and whether what is published on social media should be deemed to be private or in the public domain. This paper will revisit the concept of 'data controller' in the context of social media and consider the extent to which users are entitled to the 'privacy' of data they share on a social media platform. It will also cover some of the forthcoming changes introduced under the proposed Data Protection Regulation including the 'right to be forgotten'

The Global Dimension of the EU’s AFSJ: On Internal Transparency and External Practice

The ‘global’ forms an increasingly regular, active and explicit part of the daily business of the EU. The paper argues that there is a specific mismatch between the commitment to transparency on a daily level in international and external fields and practices of EU law and the actual substantive law-making practice evolving. While the EU’s vision of the global is to a degree the most transparent ever, the converse is not necessarily the case as to its legal content. The global dimension to EU law has increasingly expansive subjects and objectives, in areas of existing strength in global actorness (e.g. trade) and in more evolving competences (e.g. security). It argues that while the EU is a significant soft power in trade, it is arguably less so in the Area of Freedom, Security and Justice (AFSJ) where its global reach becomes more challenging. The relative weakness of the EU’s global approach in the AFSJ is usually or acutely felt by individuals who face challenges in seeking redress increasingly as to aspects of transparency. The paper argues that there is a significant mismatch of internal transparency practices concerning the EU’s global law-making. Ultimately, mismatches between internal procedures and external law-making as to transparency operate adversely upon the global in a variety of ways, e.g. as to transparency and clarity, good administration and territoriality claims taken by individuals. It outlines the express approach to the global in EU policy in (i) migration (ii) passenger name records and the non-express approach to the ‘global’ in EU data protection and data transfers