Search engines, global internet publication and European data protection: A new via media?

• Published in: Cambridge law journal 2020-03, Vol.79 (1), p.24-27
• Main Author: Erdos, David
• Format: Article
• Language: English
• Subjects: Blocking; Courts; Data integrity; Data protection; Electronic publications; General Data Protection Regulation; Harmonization; Indexing; Intellectual property; International law; Internet; Internet Protocol; Jurisdiction; Legislatures; National standards; Search engines; Virtual private networks
• ISSN: 0008-1973; 1469-2139
• DOI: 10.1017/S0008197320000197

THE ruling in 'Google Spain' (Case C-131/12 (EU:C:2014:317)), which was handed down over five years ago, was undoubtedly a landmark decision on the interface between European data protection and online publication. However, even as regards determination of the duties of Internet search engines to de-index personal data on request, this Grand Chamber judgment only provided the beginnings of the necessary analysis. More recently, in Case C-507/17, 'Google v Commission nationale de l'informatique et des libertes' (EU:C:2019:772), another Grand Chamber decision addressed one core issue which immediately arose, namely, specifying within which geographical services a global operator such as Google was mandated to accede to an otherwise valid claim by an individual to de-indexing or, in other words, to the removal of specified personal data from at least name-based searches. This reference arose from Google's appeal against the decision of the French Data Protection Authority (DPA) to fine this company for its failure to ensure such de-indexing on a global basis in all cases, an appeal which was ultimately heard by the French Conseil d'Etat. Although this DPA intervention was grounded in the former Data Protection Directive (DPD) 95/46/EC (OJ 1995 L 281/31), the Court of Justice ultimately gave even more attention to the current General Data Protection Regulation (GDPR) 2016/679 (OJ 2016 L 119/1). It held that this legislation required Google to adopt measures which had "the effect of preventing or, at the very least seriously discouraging internet users in the Member States from gaining access to the links in question" (at [70]) through conducting searches which otherwise fell within the scope of the de-indexing right. Beyond this, Member State supervisory and judicial authorities were also empowered to undertake a case-by-case balancing between data protection and freedom of expression "in light of national standards of protection of fundamental rights" and order global de-indexing "where appropriate" (at [72]). Finally, the EU legislature had competence to provide for global de-indexing across the Union if it so chose (at [58]). The judgment has been widely touted as securing a "major victory" ('Washington Post', 24 September 2019) for Google. Given that the Court of Justice clearly rejected the French DPA's contention that EU law mandated across-the-board global de-indexing, that is somewhat understandable. However, the judgment ultimately seeks to chart a 'v