Editorial of September 2019

eraser-507018_1280

 by Alessandra Silveira, Editor
 and Tiago Cabral, Master's student in EU Law at UMinho


Google v. CNIL: Is a new landmark judgment for personal data protection on the horizon?

1. In the 2014 landmark Judgment Google Spain (C-131/12), the Court of Justice of the European Union (hereinafter, “ECJ”) was called upon to answer the question of whether data subjects had the right to request that some (or all) search results referring to them are suppressed from a search engine’s results. In its decision, the ECJ clarified that search engines engage in data processing activities and recognised the data subject’s right to have certain results suppressed from the results (even if maintained on the original webpage).

2. This right encountered its legal basis on 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 (hereinafter, “Directive 95/46”) jointly with Articles 7 (respect for private and family life) and 8 (protection of personal data) of the Charter of Fundamental Rights of the European Union (hereinafter, “Charter”). In accordance with the Court’s decision, it can be exercised against search engines acting as data controllers (Google, Bing, Ask, amongst others) and does not depend on effective harm having befallen the data subject due to the inclusion of personal data in the search engine’s results. Data subject’s rights should override the economic rights of the data controller and the public’s interest in having access to the abovementioned information unless a pressing public interest in having access to the information is present.

3. Google Spain offered some clarity on a number of extremely relevant aspects such as: i) the [existence of] processing of personal data by search engines; ii) their status as data controllers under EU law; iii) the applicability of the EU’s data protection rules even if the undertaking is not headquartered in the Union; iv) the obligation of a search engine to suppress certain results containing personal data at the request of the data subject; v) the extension, range and (material) limits to the data subjects’ rights. The natural conclusion to arrive is that Google Spain granted European citizens the right to no longer be linked by name to a list of results displayed following a search made on the basis of said name.

4. What the judgment did not clarify, however, is the territorial scope of the right (i.e. where in the world does the connection have to be suppressed?). Is it a global obligation? European-wide? Only within the territory of a specific Member State? In 2018, the European Data Protection Board (hereinafter, “EDPB”) issued Guidelines on the territorial scope of the GDPR, but their focus is Article 3 of the legal instrument and therefore they offer no clarity on this issue (even if they did, they would not bind the ECJ).
Continue reading “Editorial of September 2019”