Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, June 26, 2013

EU Judge Advocate General: ISP Does Not Have To Remove Harmful, Sensitive Info That Turns Up During Web Search

In a case involving the interpretation of the EU's data protection directive and the so-called "right to be forgotten," an advocate general for the European Court of Justice has released an advisory opinion finding that an internet search engine service provider (in this case Google) does not have to remove information that an individual considers harmful or sensitive if the information turns up because of a search of the web if the provider does not itself control the information.

The Judge Advocate General wrote in part:

In contemporary information society, the right to search information published on the internet by means of search engines is one of the most important ways to exercise that fundamental right. This right undoubtedly covers the right to seek information relating to other individuals that is, in principle, protected by the right to private life such as information on the internet relating to an indivdual’s activities as a businessman or politician. An internet user’s right to information would be compromised if his search for information concerning an individual did not generate search results providing a truthful reflection of the relevant web pages but a ‘bowdlerised’ version thereof.

An internet search engine service provider lawfully exercises both his freedom to conduct business and freedom of expression when he makes available internet information location tools relying on a search engine.

The particularly complex and difficult constellation of fundamental rights that this case presents prevents justification for reinforcing the data subjects’ legal position under the Directive, and imbuing it with a right to be forgotten. This would entail sacrificing pivotal rights such as freedom of expression and information. I would also discourage the Court from concluding that these conflicting interests could satisfactorily be balanced in individual cases on a case‑by‑case basis, with the judgment to be left to the internet search engine service provider. Such ‘notice and take down procedures’, if required by the Court, are likely either to lead to the automatic withdrawal of links to any objected contents or to an unmanageable number of requests handled by the most popular and important internet search engine service providers. In this context it is necessary to recall that ‘notice and take down procedures’ that appear in the ecommerce Directive 2000/31 relate to unlawful content, but in the context of the case at hand we are faced with a request for suppressing legitimate and legal information that has entered the public sphere. In particular, internet search engine service providers should not be saddled with such an obligation. This would entail an interference with the freedom of expression of the publisher of the web page, who would not enjoy adequate legal protection in such a situation, any unregulated ‘notice and take down procedure’ being a private matter between the data subject and the search engine service provider. It would amount to the censuring of his published content by a private party. It is a completely different thing that the States have positive obligations to provide an effective remedy against the publisher infringing the right to private life, which in the context of internet would concern the publisher of the web page.

As the Article 29 Working Party has observed, it is possible that the secondary liability of the search engine service providers under national law may lead to duties amounting to blocking access to third‑party websites with illegal contents such as web pages infringing IP rights, or displaying libellous or criminal information. 

In contrast any generalised right to be forgotten cannot be invoked against them on the basis of the Directive even when it is interpreted in harmony with the Charter.


For these reasons I propose that the Court should answer the third preliminary question to the effect that the rights to erasure and blocking of data, provided for in Article 12(b), and the right to object, provided for by Article 14(a), of the Directive, do not extend to such a right to be forgotten as described in the preliminary reference.

Read the entire advisory opinion here. The case is Google Spain v. Agencia Espanola de Proteccion de Datos (AEPD), Case C-131/12. More here from the New York Times.

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