I reported earlier on the AG’s Opinion in Google Spain. The Court held this morning. It broadly confirms the AG’s view on jurisdiction however it did effectively read a (conditional and incrimental) right to be forgotten in the current Directive, in contrast with the AG.
The ECJ confirmed earlier case-law in which it held that the operation of loading personal data on an internet page must be considered to be such ‘processing’ within the meaning of Article 2(b) of Directive 95/46. This finding is not affected by the fact that those data have already been published on the internet and are not altered by the search engine.
Who is the ‘controller’ of these data? The activity of a search engine is liable to affect significantly, and additionally compared with that of the publishers of websites, the fundamental rights to privacy and to the protection of personal data. The operator of the search engine as the person determining the purposes and means of that activity must ensure, within the framework of its responsibilities, powers and capabilities, that the activity meets the requirements of Directive 95/46 in order that the guarantees laid down by the directive may have full effect and that effective and complete protection of data subjects, in particular of their right to privacy, may actually be achieved. It is this operator who is the ‘controller’ within the meaning of the Directive.
The territorial scope of the Directive is the most relevant to the conflicts community: It is noteworthy that in the current version of the data protection directive, targeting of consumers is not a jurisdictional criterion for providers established outside of the EU.
The referring court had stated that Google Search is operated and managed by Google Inc. and that it has not been established that Google Spain carries out in Spain an activity directly linked to the indexing or storage of information or data contained on third parties’ websites. Nevertheless, according to the referring court, the promotion and sale of advertising space, which Google Spain attends to in respect of Spain, constitutes the bulk of the Google group’s commercial activity and may be regarded as closely linked to Google Search.
The ECJ notes that Google Spain engages in the effective and real exercise of activity through stable arrangements in Spain. As it moreover has separate legal personality, it constitutes a subsidiary of Google Inc. on Spanish territory and, therefore, an ‘establishment’ within the meaning of Article 4(1)(a) of Directive 95/46. However, is the processing of personal data by the controller ‘carried out in the context of the activities’ of an establishment of the controller on the territory of a Member State (necessary to trigger application of the Directive)?
Google Spain and Google Inc. dispute that this is the case since the processing of personal data at issue in the main proceedings is carried out exclusively by Google Inc., which operates Google Search without any intervention on the part of Google Spain; the latter’s activity is limited to providing support to the Google group’s advertising activity which is separate from its search engine service.
The court disagreed: Article 4(1)(a) of Directive 95/46 does not require the processing of personal data in question to be carried out ‘by’ the establishment concerned itself, but only that it be carried out ‘in the context of the activities’ of the establishment (at 52): that is the case if the latter is intended to promote and sell, in that Member State, advertising space offered by the search engine which serves to make the service offered by that engine profitable (at 55). The very display of personal data on a search results page constitutes processing of such data. Since that display of results is accompanied, on the same page, by the display of advertising linked to the search terms, it is clear that the processing of personal data in question is carried out in the context of the commercial and advertising activity of the controller’s establishment on the territory of a Member State, in this instance Spanish territory (at 57).
This view confirms broadly the AG’s use of Google’s ‘business model’ as a jurisdictional trigger.
The AG had also opined on the supposed ‘right to be forgotten’ concluding that it does not exist in current EU law (neither directive nor Charter). The ECJ’s findings work towards such right (without mentioning it specifically) following a thorough review of the requirements of the Directive and the proportionality test implied, and by holding that given the ease with which information published on a website can be replicated on other sites and the fact that the persons responsible for its publication are not always subject to European Union legislation, effective and complete protection of data users could not be achieved if the latter had to obtain first or in parallel the erasure of the information relating to them from the publishers of websites.
The operator of a search engine may therefore be obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful (at 88). The right to privacy however has to be assessed vis-a-vis the right of the public to information, in an ad hoc manner.
The judgment has plenty for the data protection community to chew over (sse e.g. Orla Linskey over at the EU law blog). For those of us who are conflicts lawyers, the jurisdictional trigger is most interesting (and will feed into the review of the Directive, one imagines).