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

The Right to be Forgotten in Post-Google Spain Case Law: an Example of Legal Interpretivism in Action?

Recent judgments by the European Court of Justice and the Federal Constitutional Court of Germany have helped to clarify the scope of the Right to be forgotten. This article addresses these judgments and highlights the path the Right to be forgotten has taken since the Google Spain case. The author asserts that the Right to be forgotten is a good example of legal interpretivism in action, as the judgments have developed and transformed the right in ways that Google Spain and the General Data Protection Regulation could not have foreseen. The element of time gained prominence in the role of balancing and is highlighted as an example of policy shaping conducted by the Courts. The article concludes with an analysis of blockchain as a next potential battleground for the Right to be forgotten and provides an outlook on how the Courts might handle issues related to this, in line with the legal interpretivist school

Cross-border data protection: Applicable law and territorial powers of national data protection supervisors

An analysis of the European Court of Justice preliminary ruling in Case C-230/14 Weltimmo s.r.o. v Nemzeti Adatvédelmi és Információszabadság Hatóság, on the interpretation of two important aspects of Directive 95/46/EC, namely, the applicable law, and territorial reach of national data protection authorities. The Court ruled that the data protection legislation of a member state may be applied by the national data protection authority to a foreign registered company which exercises, through stable arrangements, real and effective (albeit minimal) activity in that member state; a ruling that potentially increases compliance costs for entities operating across multiple European jurisdictions pending the introduction of the proposed General Data Protection Regulation

Advertising as the Cause for Goggle’s Defeat in the “Right to be Forgotten” Ruling

This article proposes a critical reflection on the case of theSpanish internet user Mario Costeja in his fight against Googlesearch engine. Mario Costeja exercised his right of oppositionto the handling of his personal data against Google Spain, S. L.,Google Inc. and La Vanguardia Ediciones S.L. The rejection ofboth companies against his petition resulted in a claim before“Agencia Española de Protección de Datos” that ended up in theEuropean Court of Justice. This article describes all the processand collects all voices involved in the trial, with the purpose ofoffering a reflexive construction of a pioneer judgment bindingupon all the member States of the European Union.Este artículo propone una reflexión crítica sobre el caso delinternauta español Mario Costeja en su lucha contra el buscadorGoogle. Mario Costeja ejerció su derecho de oposición altratamiento de sus datos personales ante Google Spain, S. L.,Google Inc. y contra La Vanguardia Ediciones S. L. La negativade ambas empresas a su petición derivó en una reclamaciónante la Agencia Española de Protección de Datos que finalmenteterminó en el Tribunal Europeo de Justicia. En este artículo sedescribe todo el proceso y se recogen todas las voces implicadasen el litigio con el fin de ofrecer la construcción reflexiva de unasentencia pionera y vinculante a todos los Estados miembrosde la Unión Europea

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

The Right to be forgotten

How can the right to be forgotten be understood in the current context determined by the digital society? Above all is able to adequately protect the person from the pervasiveness and perennial memory of the web? This work analyses the question by examining the evolution of European Union’s Jurisprudence since the Google Spain case and, on a comparative basis, by outlining the current situation in the United States.

The Right to Be Forgotten: Google Spain as a Benchmark for Free Speech versus Privacy?

Since the Court of Justice of the European Union ruled in Google Spain in 2014, the global legal discourse on the “right to be forgotten” (RTBF) has accelerated the RTBF’s establishment as a right to informational privacy. But international courts have varied in their interpretations and applications of the RTBF, with some embracing it and others being wary of balancing the right with freedom of expression. While de-indexing search engine results was the primary method of facilitating the RTBF in Google Spain, this method has not necessarily informed many courts’ RTBF decisions. Instead, international and foreign courts are increasingly finding that anonymizing or removing original stories linked to internet users is not necessarily the best approach, and that updates, corrections, and responses to contested stories are often preferable options. Over time, global judicial procedures have evolved to deal with the RTBF in a more sophisticated manner, clarifying its conceptual and theoretical boundaries. Notably, non-EU countries have made significant contributions to the legal discussion on how to balance the RTBF with freedom of expression, as evidenced by the Brazilian Supreme Court. The RTBF will undoubtedly continue to be an important part of the “privacy versus free expression” debate, with the balance shifting toward the right to privacy