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The cases of Gloria and Google Spain: from 1984 to One hundred years of solitude
A comparison of the approach from the Colombian Constitutional Court and the Court of Justice of the European Union on the right to be deindexed or delisted.
Emmanuel Vargas Penagos
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Table of contents
Acknowledgments ... 4
Chapter 1: Introduction ... 5
1.1. Research scope and focus ... 8
1.2. Structure and methodology ... 10
Chapter 2: The tension of rights ... 12
2.1. Issues with an individual’s data online ... 14
2.2. The media perspective ... 16
2.3. The search engine ... 20
2.4. The public’s right to receive information ... 23
2.5. Conclusion ... 24
Chapter 3: The cases of Google Spain in the European Union and Gloria in Colombia and their frameworks ... 25
3.1. The Google Spain case... 25
3.1.1. The legal framework surrounding the case ... 27
3.1.1.1. On freedom of expression ... 29
3.1.1.2. On privacy and data protection ... 31
3.1.1.3. Conclusion ... 34
3.2. The case of Gloria ... 34
3.2.1. The constitutional framework surrounding the case ... 36
3.2.1.1. On freedom of information ... 38
3.2.1.2. On privacy ... 42
3.2.1.3. On data protection ... 44
3.2.1.4. On reputational rights ... 47
3.2.1.5. On search engine results ... 48
3.2.1.6. Conclusion ... 50
Chapter 4: The cases of Google Spain and Gloria: finding the differences and similarities 50 4.1. Implications of the rights or legal paths used by each court ... 52
4.2. Who is the addressee of a right to be delisted/deindexed? ... 56
4.3. The impact on individual’s rights ... 58
4.4. The impact on media freedom ... 60
4.5. The impact on the public’s right to receive information ... 63
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Acknowledgments
Even though it seems not to be a Dutch tradition and it may look as too sentimental, the author would like to thank several people for their help and support on the drafting of this thesis and on pursuing his research master:
To Kristina Irion for her guidance, patience and dedication as thesis supervisor. To his parents for always being there.
To Poli for her love and dedication and for being an inspiration for doing the best.
To Tarlach McGonagle, Lucie Guibault, Joao Pedro Quintais and Stephanie Abrutyn for all their lessons as teachers, professionals and human beings.
To Bojana Kostic for being a mother and a best friend in Europe. To Edison Guerrero for being a brother in U.S.A.
To María José Pardo for her company as a friend. To Leon Trapman for his friendly face and thoughts.
To all his friends and colleagues at FLIP, but specially to Viviana Ordóñez, Luisa Isaza, Pedro Vaca and Carlos Cortés for their support, discussions about freedom of expression and friendship.
To Nathalia Isaza for her help in understanding the case law of the CJEU.
To Juliana Spinel for her help in understanding and overcoming things that used to be harder. To Verónica for all her motivation, time, love and unintended lessons.
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Chapter 1: Introduction
One hundred years of solitude, the most known book of Colombian Nobel Prize winner Gabriel García Márquez, talks about a town where everyone’s memory falls into an oblivion. Colonel Aureliano Buendía attempts to stop this plague by unsuccessfully inventing a memory machine. García Márquez’s book has been seen as a reflection of Colombia, a country with a constant struggle to not forget its long story of violence and war.1 In current times, people would see the Internet and search engines as Buendia’s dreamt invention: machines that store immense amounts of information and allow an easier query of the past.
Probably outside of Buendía’s concerns, the Internet and search engines have brought tensions upon fundamental rights, including individuals’ desire to hide their past. Some could argue that the availability of information online has made the current world as comparable to the one in George Orwell’s 1984, where extreme or pervasive surveillance is common. Moreover, the possibilities to rewrite history may resemble the work of Winston Smith, a character of 1984 dedicated to such a task.
The tension regarding individuals’ rights online when referring to their personal information in search engine results exploded at the beginning of this decade. In 2011 the Spanish data protection authority, Agencia Española de Protección de Datos (AEPD), had issued orders to Google to stop indexing information about 90 citizens who filed formal complaints.2
Furthermore, the Article 29 Working Party had raised the issue by noticing that several data protection authorities in the European Union had received complaints from individuals regarding breaches to their private life.3 Peter Fleischer, Google’s global privacy council, had
criticised the Spanish approach by saying that it would entail serious freedom of expression issues. He considered that giving the power to search engines to determine which information should not be found on their service would cause a chilling effect. Moreover, Fleischer
1 Antonio Caballero, ‘'Cien años de soledad', un manual de la historia de
Colombia’< https://www.semana.com/cultura/articulo/cien-anos-de-soledad-un-manual-de-la-historia-de-colombia/526667 > Semana (Bogotá, 5 May 2017) accessed 24 May 2018.
2 Suzane Daley, ‘On Its Own, Europe Backs Web Privacy Fights’
<https://www.nytimes.com/2011/08/10/world/europe/10spain.html?pagewanted=all> New York Times (New York, 9 August 2011) accessed 24 May 2018.
3 Article 29 Working Party, ‘Opinion 1/2008 on data protection issues related to search engines’ (WP 148, 4
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considered that the easiest path was to order publishers to use technical measures such as the robots.txt protocol to exclude webpages from search engines’ indexes.4 Fleischer’s approach
was later used as Google’s defence with variant outcomes in cases such as the ones examined in this research.
On 22 January 2012, the European Commissioner for Justice, Fundamental Rights and Citizenship, Viviane Redding, announced a proposal to create a new privacy right called the ‘right to be forgotten’. That day, Redding said that:
The Internet has an almost unlimited search and memory capacity. So even tiny scraps of personal information can have a huge impact, even years after they were shared or made public. The right to be forgotten will build on already existing rules to better cope with privacy risks online. It is the individual who should be in the best position to protect the privacy of their data by choosing whether or not to provide it. It is therefore important to empower EU citizens, particularly teenagers, to be in control of their own identity online. By the way, 81% of German citizens are worried they are no more in control of their personal data! If an individual no longer wants his personal data to be processed or stored by a data controller, and if there is no legitimate reason for keeping it, the data should be removed from their system. The right to be forgotten is of course not an absolute right. There are cases where there is a legitimate and legally justified interest to keep data in a data base. The archives of a newspaper are a good example. It is clear that the right to be forgotten cannot amount to a right of the total erasure of history. Neither must the right to be forgotten take precedence over freedom of expression or freedom of the media. 5
Such a proposal formed part of the discussion behind the General Data Protection Regulation (GDPR). The legislative process for the GDPR went on until 14 April 2016. By the time the process was finished, academic literature had raised concerns that the right to be
4 Peter Fleischer, ‘"The Right to be Forgotten", seen from Spain’(Peter Fleischer: Privacy...?, 5 September
2011) <http://peterfleischer.blogspot.nl/2011/09/right-to-be-forgotten-seen-from-spain.html> accessed 24 May 2018.
5 Viviane Redding, ' The EU Data Protection Reform 2012: Making Europe the Standard Setter for Modern
Data Protection Rules in the Digital ' (2012)
<http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/12/26&format=PDF> accessed 24 May 2018.
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forgotten, as established in the GDPR draft, could lead to a chilling effect of data controllers, including publishers and search engines, who would delete information in ambiguous cases in order to avoid sanctions.6
In the meantime, the debate continued on outside of European legislative institutions. The milestone decision on this matter was made by the Court of Justice of the European Union (CJEU) in 2014, which concerned a 2012 referral of a case filed by Google against the AEPD at the Agencia Nacional, or the Google Spain case.7 Even though the judgment did not decide on the existence of a right to be forgotten, it raised attention to the subject. From that moment, it was settled that data protection law in the European Union allowed individuals to request search engines to undertake the suppression of links to information about them in specific cases, better referenced to as a right to be delisted.
This decision led to an ever-increasing number of individuals filing deindexing requests to search engines in Europe.8 With this case as a framework, academic literature has been written, and decisions around the world have been made. Latin America was not the exception.
An issue that has been brought in Latin American courts is the way in which the right to be forgotten or the right to be delisted could affect critical matters in their countries: the construction of historic memory around human rights violations and freedom of the press on investigating corruption.9 This matter was raised by Argentinian academic and former
Special Rapporteur on Freedom of Expression of the Inter American Commission on Human Rights, Eduardo Bertoni, who said that a reasoning like the one given by the CJEU in Google Spain is an affront to Latin America’s efforts in search of the truth regarding military dictatorships. Furthermore, if a person involved in human rights violations could solicit
6 Rosen J, 'The Right to Be Forgotten' (2011-2012) 64 Stan L Rev Online 88 91
7 Case C-131/12 Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and
Mario Costeja González [2014] ECLI:EU:C:2014:317.
8 Google, ‘European privacy requests for search removals’ <
https://transparencyreport.google.com/eu-privacy/overview > accessed 24 May 2018.
9 Geert Van Calster and others, ‘Not just one, but many ‘Rights to be Forgotten’’ 2018 Internet Policy Review
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information about their crimes to be inaccessible on the grounds of it being extemporaneous, it would be “an enormous insult to our history”.10
In 2015, the Colombian Constitutional Court decided a case regarding a person’s request to remove an article from a newspaper’s webpage, the case of Gloria.11 The Court’s judgment was praised by freedom of expression advocates for not establishing a delisting obligation over Google. Publishers on the other side were seen as obliged to deindex information. Furthermore, critiques came over the fact that the Court created an ex office, which is to say without prior request, “right to update” journalistic information online regarding criminal procedures.12 However, the ruling seems to have similar effects as Google Spain, as individuals in Colombia would still have a right to suppress their information from search engine results in some specific cases and the suppression has to be requested to the media outlet.
1.1. Research scope and focus
The research question that this research aims to answer is: What are the differences and similitudes in the conception of the “right to be forgotten” at the Colombian Constitutional Court and the Court of Justice of the European Union?
For answering this question, the following research steps will be taken:
1. First, the research will show the different rights or interests that are at stake when outdated or prejudicial information appears in search engine results on the basis of a name search.
2. Second, the research will outline the key constitutional and data protection principles and foundations that inform the conception of the “right to be forgotten” in each legal system. For doing so, this research will identify the relevant law in both Colombia
10 Eduardo Bertoni, ‘The Right to Be Forgotten: An Insult to Latin American History’
<https://www.huffingtonpost.com/eduardo-bertoni/the-right-to-be-forgotten_b_5870664.html> accessed 24 May 2018.
11 Colombian Constitutional Court, case of Gloria v Casa Editorial El Tiempo, judgment T 277 of 2015. 12 ‘Corte Constitucional colombiana decide sobre caso de derecho al olvido en internet’ (2015)
< https://flip.org.co/index.php/es/informacion/pronunciamientos/item/1791-corte-constitucional-colombiana-decide-sobre-caso-de-derecho-al-olvido-en-internet> accessed 24 May 2018.
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and in the European Union and their main elements in the balance of the implicated rights (freedom of expression, reputational rights, privacy and data protection). 3. Third, the research will address the legal paths that were used by the Colombian
Constitutional Court and the CJEU to address the “right to be forgotten”.
4. Fourth, the research will focus on who are the addressees of delisting or deindexing requests in each legal system and the rationales for it.
5. Fifth, the research will answer the question of how the conception of each legal system affects the rights of individuals who want their information to be “forgotten” or not easily found.
6. Sixth, the research will refer to the question of how media freedom is affected by each legal system’s conception of the “right to be forgotten”.
7. Finally, the research will address the question of how the public’s right to receive information is affected.
This research will focus on the principles used for the balancing of rights at the Colombian Constitutional Court and the CJEU. In Colombia, the Constitution enshrines freedom of expression, reputational rights, privacy and data protection as fundamental rights. The same happens with the European Charter of Human Rights, binding since 2009 in the European Union. However, differences in principles for the balancing of rights as well as the conception of the application of data protection law to the case at hand could be seen as informing the key differences between the decisions.
This research will not focus on the discussion regarding jurisdiction, which was also a relevant part of both judgments. Furthermore, this research will not reflect on further developments after the judgments given by the Colombian Constitutional Court and the CJEU, such as the referral by the French Conseil d’etat in 2017 regarding the territorial application of granted deindexing requests13 or the Colombian Constitutional Court’s decisions applying Gloria’s reasoning to opinion articles or news coverage of civil
13‘Request for a preliminary ruling from the Conseil d’État (France) lodged on 21 August 2017 — Google
Inc. v Commission nationale de l’informatique et des libertés (CNIL) (Case C-507/17)’ (2017)
<http://curia.europa.eu/juris/document/document.jsf?text=&docid=195494&pageIndex=0&doclang=EN&mo de=req&dir=&occ=first&part=1&cid=1368192 > accessed 24 May 2018.
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procedures.14 Finally, this research will not refer to the right to be forgotten as established in
the GDPR.
1.2. Structure and methodology
The methodology for this research is comparative, as the purpose of this research is to describe and explain differences and similitudes between the approaches given by two different legal systems to the same societal phenomenon. Furthermore, the selection of the two specific legal systems comes from the notion of lösungstypen, which implies comparing systems with different solutions to the same problem.15
The chosen methodology requires the outlining of the common elements that the compared legal systems share. For descriptive researches such as this, the common element is the function fulfilled in each legal system.16
The function-based method in this case has a problem-solving approach, which starts from the specific problem or set of facts and then the solution in the compared legal systems is sought.17
The societal problem arising from the two cases examined in this research may be summarised in the following way: when the names of specific individuals are typed in search engines, one can find outdated information published in news articles. The availability of this information is not desired by the individual due to reputational or personality reasons and they want it made publicly inaccessible, namely by deleting it from the publisher’s webpage or from the search engine’s results. Each one of the two analysed legal systems found a different path to fulfil the same function of solving the mentioned problem.
The legal systems in these cases have relevant differences. While the Colombian Constitutional Court is within a national legal system, the CJEU is within a supranational
14 Colombian Constitutional Court, Case of Carlos Alberto Plata Gómez v El Espectador and Carlos Fernando
Galán Pachón, Judgment T 693 of 2016. See also Colombian Constitutional Court, Case of Storage and Parking SAS v RCN Televisión SA Judgment T 725 of 2016.
15 Marieke Oderkerk, ‘The Need for a Methodological Framework for Comparative Legal Research - Sense
and Nonsense of "Methodological Pluralism" in Comparative Law’ (2015) 79 (3) Rabels Zeitschrift für ausländisches und internationales Privatrecht 589 607.
16 ibid 611. 17 ibid 612.
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one. Furthermore, while the former court is responding to the application of constitutional rights and doctrine over a specific problem, the latter is answering questions by a national court on how a supranational law must be interpreted on that issue. This should not be considered as a problem for the comparison. The fact that compared objects may be similar in their overall function does not imply that they are completely similar.18 What matters is that one finds rules fulfilling equivalent functions regardless of their form or structure.19
Furthermore, it must be noted that the sources for the comparison in this research, as highlighted by academic literature, are the sources of law in each legal system as understood by lawyers of each specific legal system.20 Based on this, the sources that will be utilised are the legal frameworks surrounding each court, including law, case law and constitutional provisions. Nevertheless, literature analysing each system and solution will also be included.
The analysis of the two legal systems will be simultaneous. This implies that each part is dedicated to one aspect or feature of the compared objects from the selected systems.21 Five features will be compared in this research. Their relevance will be explained in Chapter 4 before starting the comparison. The features that will be compared are the following:
1. Implications of the rights or legal paths used by each court in each case.
2. The party that is considered the addressee of the right to be delisted/deindexed in each case.
3. The impact on an individual’s rights. 4. The impact on media freedom.
5. The impact on the public’s right to receive information.
As a starting point and based on the abovementioned methodology, this research will address the challenges that individuals face when outdated and harmful information about them is available online. Moreover, the research will also refer to journalistic standards, practices, or challenges regarding the updating of information of individuals referenced in specific articles in online and offline scenarios. Furthermore, the research will also seek to delineate the differences among the challenges regarding the updating of information in offline and online
18 ibid 613. 19 ibid. 20 ibid 615. 21 ibid 617.
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scenarios. The sources for this portion of the research will primarily be sociological literature or legal doctrine that refers to the abovementioned challenges.
As a second step, the research will include a brief introduction on the elements of each case, followed by a doctrinal description of the applicable law in both of the selected legal systems. This will include a revision of the constitutional provisions, applicable laws on data protection, case law, and literature addressing those matters. Furthermore, this part of the research will also address the way in which each system conducted the balancing of fundamental rights. This approach is based on a doctrinal method, which has a “systematic exposition of the rules governing a particular legal category, analysis of relationship between rules, explanation of areas of difficulty and, perhaps, predicting future developments”.22
As a third step, a comparison between both decisions will be performed. The comparison, as explained above, will have five sub-chapters where each one of the abovementioned features will be compared with regards to each legal system. In doing so, the main differences and similarities will be highlighted.
Once these steps are taken, final conclusions will be drawn.
Chapter 2: The tension of rights
Before the Internet’s emergence, radio and television had already caused an exponential growth in the sharing of information. However, these media can be seen as more contained compared to the Internet, given their limits in time and the effects of the information that they circulate. In current times, text, video and images are turned into digital data and have a form of permanent circulation, as well as a vulnerability to a global scale of exposure. Furthermore, the potential for memory has shifted to what can be called a post-scarcity culture: before the digital era, many historic events would become muted with time, but
22 T Hutchinson and N Duncan, ‘Defining and describing what we do: Doctrinal legal research’ 17(1) Deakin
13
nowadays society is struggling with a new and significantly different level of creation, adaptation and circulation of memory.23
Search engines have played a significant role in the Internet’s expansion. Thanks to search engines, people are allowed to find information in an easier way than it would be if information online could only be accessed by handy and well-resourced individuals. On their functioning, search engines are intermediaries for information flows between online information providers and internet users, which was described in the following way by an academic:
It [the search engine] aggregates information and stores it in its index, typically with the use of sophisticated crawling software that makes automatic requests for the available online material. On the basis of that index and its subsequent analysis, it provides a service to end-users, whose input, in the form of search queries and other data results in an output by the search engine, in the form of a ranked selection of references to and descriptions of certain information providers. From this selection the user can follow specific references and make an information request to a specific information provider to receive the information provider’s full information offering.24
This flow of information will, as can be deducted from the cases analysed in this research, trigger a tension of rights and interests in different moments. For the relevance of this research, the following rights and interests can be seen as creating a field of tension or, as referred to in academic literature, a “rectangle of interests”.25
23 Andrew Hoskins, ‘The Right to be Forgotten in Post-Scarcity Culture’ in Alessia Ghezzi and others (eds)
The Ethics of Memory in a Digital Age. Palgrave Macmillan Memory Studies (Palgrave Macmillan
2014).
24 J.V.J. van Hoboken, Search engine freedom: on the implications of the right to freedom of expression for
the legal governance of Web search engines (Wolters Kluwer 2012) 41-42
25 Indra Spiecker genannt Döhmann, ‘A new framework for information markets: Google Spain’ 52 Common
14 Figure 1: Field of tension
Figure 1 shows the way in which the field of tension is configured, which refers to i) the media’s right to impart information and ideas, which can be enhanced through the facilitation done by the search engine; ii) the public’s and end users’ interest to receive information; iii) the rights to privacy, data protection and reputation of the individual whose information is being published and indexed and; iv) the search engine’s interest in conducting its business and to arrange information according to its self-established criteria.26
There is literature that has used this field of tension as a methodological structure to analyse the Google Spain case, even though the Court did not use such a methodology.27
This chapter will explain the main issues that are raised from each of the mentioned interests. It will start by explaining the problems that arise from the availability of an individual’s information online. This will be followed by the media perspective with emphasis on the reasoning that has brought protection to journalism in data protection law. After doing so, the implications for search engines’ business models will be explained. Finally, this chapter will focus on the perspective of internet users in relation to the public sphere.
2.1. Issues with an individual’s data online
26 Stefan Kulk and Frederik Zuiderveen Borgesius, ‘Privacy, Freedom of Expression, and the Right to Be
Forgotten in Europe’ in Jules Polonetsky and others (eds) Cambridge Handbook of Consumer Privacy (Cambridge University Press 2017).
15
The tensions that arise in digital environments regarding privacy and online self-determination can be traced to the fact that the Internet involves significant amounts of processing of individuals’ information.28 Moreover, search engines have a considerable
power to gather the information of individuals for free (leaving aside the administrative costs) without limits on time, location or administrative requirements and from publically available sources, such as online news media.29
With digital media, there is now an “eternity effect”, which is heightened by search engines. These tools are able to retrieve information without its initial context. There can be a harmful effect on individuals, as de-contextualised portraits of them could be constructed through what is found in search results, ranging from third party content to information posted by the concerned person.30
One of the effects of the large amount of data available online is that the profiling of individuals is much easier and can have a greater impact than in past times. On this matter, the United Nations Special Rapporteur on the Right to Privacy has said that while the data available is greater than 25 years ago, the risks for privacy associated with the use or misuse of data are still far from being fully understood.31
In the European Union, the Article 29 Working Party, which is responsible for providing advisory functions with regards to data processing matters at EU level, had already emphasised some of the risks with the availability of information online on the early 2000’s. Public registers and other publicly available sources could bring concerns. Moreover, the computerisation of data and full-text searches would allow for nearly unlimited ways to request and sort information as well as to combine publicly available data from different sources which would enable the profiling of individuals.32
28 Cécile de Terwangne, ‘The Rtbf and the informational autonomy’ EU Publications
<https://publications.europa.eu/en/publication-detail/-/publication/6c4c7bc6-8619-4d21-ae57-30de1a349df1/language-en> accessed 24 May 2018 87.
29 ibid 91. 30 ibid 85.
31 United Nations Human Rights Council, ‘Report of the Special Rapporteur on the right to privacy, Joseph A.
Cannataci’ (8 March 2016) A/HRC/31/64 [8].
32Article 29 Working Party, ‘Working Document Privacy on the Internet - An integrated EU Approach to
16
An example of the concerns of risks from computerised information that the Article 29 Working Party considered at that moment was regarding case-law databases, which could allow one to obtain a list of court judgments on specific individuals rather than to find about case law.33
Most of the examples given by the Article 29 Working Party are in relation to information that was already publicly available. Search engines facilitate the task of finding and cross-referencing the information, while the absence of these tools would imply moving from one place to another and spending time and resources in compiling and arranging what is found.34 Search engines allow the quick aggregation and access to information that might sometimes be inaccurate or harmful for individuals concerned.35
2.2. The media perspective
Journalism is about telling stories and monitoring current affairs, which are often linked to individuals. One academic has referred to journalism as an “increasingly diverse range of contributions to public debate, comprising a professional and largely institutionalised core, but also stretching to cover alternative forms of journalism”.36 Moreover, journalism has been
recognised to have several goals and variants with increasing participation from a variety of actors.37
Currently, the media faces an increasing flow of information that needs to be constantly updated and rewritten. The principles of journalism remain the same but its practice has become more difficult. Journalists’ work has become even more of a public good that enables users to liberate themselves from previously more organised information flows.38
33 ibid.
34 Tene, Omer, ‘What Google Knows: Privacy and Internet Search Engines’ 2007 Utah Law Review
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1021490> accessed 24 May 2018 (forthcoming) 8.
35 ibid 8-9.
36 Tarlach Mcgonagle, ‘How to address current threats to journalism?: The role of the Council of Europe in
protecting journalists and other media actors’ (2013) Council of Europe <https://rm.coe.int/1680484e67> accessed 25 May 2018.
37 ibid.
38Bregtje Van Der Haak, Michael Parks, Manuel Castells, ‘The Future of Journalism: Networked Journalism’ (2012) 6 International Journal of Communication2923 2933.
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In their daily work, the media collects an immense amount of personal information in many forms: interviews, government and company records, photographs, films, etc. Furthermore, it has been argued that the media has an increasing capacity to inflict damage on individuals.39
Indeed, complaints about the media’s intervention in an individual’s life are frequent. Examples can be found in the Leveson Report, developed by Lord Justice Leveson in the UK as a governmental response to the news of the world scandal.40 The report highlights the use of unethical techniques by British media, such as “phone hacking, surveillance, blagging and harassment… [and] the publication of private and/or sensitive material without any public interest justification, and the intrusion into grief or shock.”41 Furthermore, the media
sometimes resorts to sensationalism embodied in the ‘four S’ model of journalism—‘scare headlines, sex, scandal, and sensation’—as a source for increasing income.42
The other side of the balance shows that the media fulfils an important role in democratic societies. This has been recognised at United Nations’ level43 and in supranational systems, such as the CJEU44 and the Inter American Court of Human Rights (IACtHR),45 to name just a few. Traditional media outlets and other actors have been considered to fulfil a ‘social watchdog’ role at the European level,46 while the IACtHR has stressed the essential role of
the media for the exercise of the collective dimension of freedom of expression, also known as the public’s right to receive information.47
39 David Erdos, ‘European Union Data Protection Law and Media Expression: Fundamentally Off Balance’
(2016) 65 International and Comparative Law Quarterly 139 2.
40 ‘Leveson Inquiry - Report into the culture, practices and ethics of the press’ (gov.uk 29 November 2012)
<https://www.gov.uk/government/publications/leveson-inquiry-report-into-the-culture-practices-and-ethics-of-the-press> accessed 1 July 2018.
41 The Right Honourable Lord Justice Leveson, ‘An inquiry into the culture, practices and ethics of the press’,
vol 2 (London: The Stationery Office 2012)
42 Switching Power: Rupert Murdoch and the Global Business of Media Politics A Sociological Analysis
Amelia Arsenault and Manuel Castells University of Southern California, Annenberg School for Communication 507
43 United Nations Human Rights Council, ‘General Comment No. 34’ (12 September 2011) CCPR/C/GC/34. 44 Case C‑73/07 Tietosuojavaltuutettu v Satakunnan Markkinapörssi Oy, Satamedia Oy [2008]
ECLI:EU:C:2008:727.
45 Granier and others v Venezuela (2015) Serie C 293 (Inter American Court of Human Rights). 46 Magyar Helsinki Bizottság v Hungary (2016) ECLI:CE:ECHR:2016:1108JUD001803011. 47 Granier and others v Venezuela (n. 45).
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Since the media constantly collects and uses personal information, their activity could be considered as personal data processing in some legal systems. This would entail a series of challenges to common traditional journalistic activities. Data quality principles could be considered as reflecting good practices of responsible journalism, but they have a wide scope and provide legal force to provisions often seen as self-regulatory.48
Therefore, there may be a clash of interests in some instances: while journalism seeks the dissemination of wide categories of information to the public, laws on data protection and other personality rights enshrine the safeguard of information related to natural persons.49 This clash has been addressed by legislators at different levels. In the European Union, Article 9 of the Data Protection Directive (Directive 95/46/EC) provided that Member States could and ought to provide derogations in their national legislation with regards to the processing carried out solely for journalistic purposes.50 It has been argued that much of the details were left to national legislators, an issue that is reiterated in the GDPR.51 In Colombia, the data protection law provides an exception of its application to databases and files regarding journalistic information and other editorial contexts. Complementarily, this law also established that data protection principles (and not specific rules) are applicable to every database, including the latter.52
This conflict of interests has been addressed by some media organisations in their ordinary practices. An example of this can be found in the Guidelines of the Netherlands Press Council, where it is stated that journalists prevent themselves from publishing details in pictures and texts that would lead to easily identify suspects and accused persons. This rule may go unobserved when: “the name forms an important part of the report; not mentioning the name because of the general reputation of the person involved does not serve any purpose; not mentioning the name could cause a mix-up with others who can be predictably harmed
48 David Erdos, ‘European Union Data Protection Law and Media Expression: Fundamentally Off Balance’
(n. 39) 5.
49 David Erdos, ‘European Regulatory Interpretation of the Interface between Data Protection and Traditional
Journalism: An Incomplete and Imperfect Balancing Act?’ [2016] PL 631 2.
50 Council and Parliament Directive 95/46/EC 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 OJ L 281/31 (Data Protection Directive) art 9.
51 David Erdos (n. 49) 9. 52 Law 1581 of 2012.
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as a result of that; the name is mentioned within the framework of investigative reporting; [or] the person himself seeks publicity.”53 A different approach is given to disciplinary
attributable errors made by lawyers, physicians, civil law notaries and similar officers acting in the course of their profession. The disclosure of this information, according to the Guidelines, serves the social interest. The professionals may have a business interest in avoiding negative effects of the publication, but this does not fall under the privacy interest. Moreover, mentioning the name of the person involved would be helpful to avoid confusion of them with other colleagues.54 There are no general objections on the publishing of names of parties in civil or administrative procedures. However, parties’ interest in remaining as anonymous as possible can bar the option of publishing a full name in certain cases, such as civil defendants in administrative cases.55
In Colombia, the Gabriel García Márquez Foundation’s ethics department has said that the coverage of criminal procedures must “report and not condemn”, contributing to clarity and justice, and providing dates and timelines for final decisions.56 Moreover, this office says that the media are not to declare a person innocent or guilty.57
In the UK, the former Press Complaints Commission (PCC), a self-regulatory body for printed newspapers and magazines, had an anti-harassment hotline for the general public to communicate the desire and obtain an order for the media to cease their attention over a specific individual.58 The Independent Press Standards Organisation, created as a replacement for the PCC, also has complaint channels for violations to the Editor’s Code of Practice, which provides standards regarding the accuracy of information, privacy, intrusion, and causing grief or shock, among other matters.59 Search engines play a relevant role for the
media online. When indexed and then shown in a search result, a news article has an easier
53 Raad voor der Journaliestiek, ‘Guidelines from the Netherlands Press Council’ (2010)
<www.rvdj.nl/uploads/fckconnector/192f9e9a-ece2-4f50-9f59-2952d7835de3> accessed 25 May 2018.
54 ibid. 55 ibid.
56 Consultorio ético, ‘¿Qué información se puede brindar a la audiencia cuando se cubre un juicio?’ (FNPI)
<http://www.fnpi.org/consultorio-etico/consulta/1720> accessed 3 July 2018.
57 Consultorio ético, ‘"El periodista carece de la autoridad para declarar la inocencia o culpabilidad de
alguien"’ <http://www.fnpi.org/consultorio-etico/consulta/154> accessed 3 July 2018.
58 The Right Honourable Lord Justice Leveson, ‘An inquiry into the culture, practices and ethics of the press’,
vol 1 (London: The Stationery Office 2012).
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means to reach an audience. Therefore, interrupting an article’s availability in search engines’ results will become an interference to the publisher’s freedom of expression, which usually protects both content and means.60 This interference will vary depending on the concept
applied: if the article’s availability is only restricted on the basis of a person’s name or other specific search terms, the interference will be lower than having the article fully deindexed.
2.3. The search engine
The appearance of the World Wide Web hypertext system in 1990 brought a significant change in how information is stored, shared and spread throughout the world. With this system, contributors were able to link their creations to other hypertext resources in the world. The web browsers allowed users to access online contents and navigate from one node to another by interpreting the hypertext world.61 Navigation relied on the end user’s
knowledge of the web and their resourcefulness in using links to other materials online. There was an opportunity and a need for a way to organise the information on the web.62
The main models that appeared to organise the information available online were the human-edited directories and the crawler-based systems. The first of those systems, as its name would imply, was the human creation of a directory of “useful links”. The second one was the use of a piece of software called a “crawler” to access, analyse and index the World Wide Web’s contents. With time, the crawler system became the predominant one when referring to general purpose search engines.63
In 2008, the Article 29 Working Party called attention to the fact that independent data protection authorities in the European Economic Area (EEA) considered that search engines’ relevance in data protection was increasing. This was reflected in an increasing number of complaints from individuals regarding potential breaches of their right to private life.64
60 Stefan Kulk and Frederik Zuiderveen Borgesius, ‘Google Spain v. González: Did the Court Forget about
Freedom of Expression?: Case C-131/12 Google Spain SL and Google Inc. v. Agencia Española De Protección De Datos and Mario Costeja González’ (2014) 5 European Journal of Risk Regulation 389 6
61 J.V.J. van Hoboken (n. 24) 27. 62 ibid.
63 ibid 28-30.
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The role of search engines as content providers, said the Article 29 Working Party, was one of the main sources of complaints regarding those companies. Search engines make publications easily accessible and some of them republish data from a cached copy. Moreover, the retrieval and grouping of widespread information can be used to create a picture of the individual concerned with a higher risk of intrusion into the person’s private life than when the information could remain detached.65
At that time, the Article 29 Working Party considered that there was a need to strike a balance between EU data protection law and the legal framework for the protection of private life and personal data in Member States on the one hand, and the free flow of information and freedom of expression on the other hand.66
The power of search engines in data protection and in other fields has raised questions about the extent of their liability over third party content that is shown in their search results. Legal uncertainty over this matter would hamper the offering of search engine services and therefore their function in the flow of information.67 In the United States, two models have been used to address this issue: the notice and take down model, found in the Digital Millennium Copyright Act, which refers to copyright infringements, and the full immunity model, provided in Section 230 of the Communications Decency Act. The first model provides a reactive notice and takedown obligation in order to avoid liability for third party content. The second one grants immunity on the basis of considering internet intermediaries (such as search engines) not to be publishers or distributors of information.68 At the European
Union level, the issue has been addressed in the implementation of the E-Commerce Directive. However, the matter is not completely harmonised and has raised questions of legal uncertainty.69 This directive provides a ‘safe harbour’ defence to online hosts as long
as they do not have actual knowledge of the illegality of the concerned content and awareness of facts or circumstances that would make the illegality apparent, or when obtaining that knowledge, act expeditiously in the removal or the disabling of the content. It has been considered that an advantage of the EU model is that it applies in a horizontal way to different 65 ibid. 66 ibid. 67 J.V.J. van Hoboken (n. 24) 240. 68 ibid 231-231. 69 ibid (n. 24) 233, 250.
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areas of law, having hosting activities regarded as the same regardless of the branch of law involved.70
The discussion on the level of internet intermediaries’ liability has often led to the question of whether censorship mechanisms have been imposed. It has been claimed that this field of law lies at a troubling intersection of state and private power.71 Indeed, when intermediaries remove content based upon complying with law, harms to users’ rights can be traced to a state action.72 Correspondingly, some legal solutions implemented to address the subject have served to allow the existence of several platforms, which would likely not have existed if their operators had to review all content that is uploaded.73 However, studies have shown that intermediaries in notice and takedown systems tend to receive and comply with inaccurate or bad faith requests for content removal.74 This would imply ill-intentioned interferences in peoples’ ability to impart or receive information.
On the other hand, search engines may have freedom of expression claims when referring to regulations about them. The way in which these entities decide how to select, rank and present information could be considered as an editorial process, allowing them protection under freedom of expression. Moreover, search engines play a societal role of curating information, reconciling universal access and navigation with information quality.75
However, this argument was not used by Google in any of the cases examined in this research, probably due to a desire not to lose protection as internet intermediaries.
Search engines’ indexing can be roughly explained as having a web crawler entering to webpages not marked with robots.txt or no index metatags, scanning the words and assigning them certain values that will be taken into account for arranging the information when a search entry is done.76 However, there are technical difficulties that would probably require
70 Christina Angelopoulos, Stijn Smet, ‘Notice-and-fair-balance: how to reach a compromise between
fundamental rights in European intermediary liability’ (2016) 8(2) 266 269.
71 Keller, Daphne, ‘The Right Tools: Europe's Intermediary Liability Laws and the 2016 General Data
Protection Regulation’ 2017 Berkeley Technology Law Journal <https://ssrn.com/abstract=2914684> accessed 24 May 2018 (forthcoming) 7.
72 ibid. 73 ibid 8. 74 ibid 9.
75 J.V.J. van Hoboken (n. 24) 211.
76 Curt Franklin, ‘How Internet Search Engines work’, (How Stuff Works)
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a change of how each search engine provides values to words. Furthermore, as one academic explains, proposals of using robots.txt as the path to solve legal issues rely on an assumption that it would be illegal for search engines not to comply to the robots.txt protocol, while in real life it is only a good practice.77
2.4. The public’s right to receive information
When referring to freedom of expression, international treaties and constitutional provisions, including the ones examined in this research, usually refer to a right to receive information and ideas.78 International bodies have developed that conception to some extent: The United Nations Human Rights Committee has referred to the public’s right to receive media output;79
the European Court of Human Rights has said that “[n]ot only do the media have the task of imparting such information and ideas; the public also has a right to receive them”,80 and the
Inter-American Court of Human Rights has considered that freedom of expression “implies a collective right to receive any information whatsoever and to have access to the thoughts expressed by others.”81
This right can be seen as enhanced by the Internet and search engines, as they allow users to obtain access to information and ideas. Moreover, users are able to obtain information about almost any individual, regardless their relevance to the public interest and regardless of the information’s actual relevance, accuracy or favourableness to the person involved.82 In that
same sense, the Internet has been framed as an “enabler” of fundamental rights. The United Nation’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression has said that the Internet enables freedom of expression by allowing
77 J.V.J. van Hoboken (n. 24) 203.
78 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23
March 1976) (ICCPR) art 19. See also American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) (ACHR) art 13; Charter of Fundamental Rights of the European Union [2000] OJ C 326/02 art 11; Colombian Constitution of 1991 art 20.
79 United Nations Human Rights Council (n.43) [13].
80 Axel Springer AG v. Germany (2012) ECLI:CE:ECHR:2012:0207JUD003995408 para 80. 81 Advisory Opinion OC-5/85 (1985) Serie a 05 (Inter American Court of Human Rights) para 30. 82 J. V. J. Van Hoboken, ‘The Proposed Right to Be Forgotten Seen from the Perspective of Our Right to
Remember: Freedom of Expression Safeguards in a Converging Information Environment (Prepared for the European Commission)’(2013)
<http://www.law.nyu.edu/sites/default/files/upload_documents/VanHoboken_RightTo%20Be%20Forgotten_ Manuscript_2013.pdf > accessed 25 May 2018 4.
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individuals to do an instantaneous and inexpensive exchange of information and ideas across national borders. According to the rapporteur, this medium also has a strong potential to enable economic, social and cultural rights, including the rights to education, to take part in cultural life, and to enjoy benefits of scientific progress, as well as civil and political rights, such as freedom of association and assembly.83
It can therefore be said that the Internet has transformed users’ ability to receive large amounts of information from nearly every part of the world in an instantaneous way. This is also amplified by the current ability to transform different kinds of information from several formats into digital code.84
Search engines play a significant role in users’ capacity to exploit the Internet’s capacity as an enabler of rights. A journalist can conduct research by searching news articles, governmental records or social media files; a parent can decide on the best options for their children’s education; a lawyer can construct better arguments for a case by accessing case law databases; and a student can improve the content of their homework through a plethora of sources additional to what can be found in the library.
2.5. Conclusion
This chapter gave a brief explanation of the four interests or rights that will come into conflict when referring to information about individuals available in search engine results. It should be noted that the Internet and search engines play a societal role in enhancing opportunities and increasing risks in the exercising of rights of the different parties that may enter into conflict.
Individuals whose information is being indexed and shown in search engine results face a new reality in which internet users are able to obtain an excessive and sometimes inaccurate profile of them.
83 United Nations Human Rights Council, ‘Report of the Special Rapporteur on the promotion and protection
of the right to freedom of opinion and expression, Frank La Rue’ (16 May 2011) A/HRC/17/27.
84 Andrew Puddephatt, ‘Freedom of Expression and the Internet’ (2016) 6 Cuadernos de Discusión de
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Media outlets, which are granted special protections due to their role in democratic society, have an interest in having their publications indexed by search engines. Without such indexing, their investigations will lose an opportunity to reach a broader audience for a longer time.
Additionally, search engines have an interest in conducting a business and, while doing so, take decisions that may be considered as “editorial”, such as deciding on the way that their software will give relevance to the indexed information. However, they have sought to be legally treated as neutral intermediaries.
Finally, users are interested in having an easy and fast means to access information, which will sometimes include data about individuals. Without search engines’ activity, their opportunities to take advantage of the Internet will be reduced. However, there will be users with an interest that may be prejudicial to individuals. An example of this could be a human resources officer at a company who decides to seek candidates’ information online. Another example could be a credit risk assessor who decides to look for more information apart from that shown in their clients’ form for applying for credit or in their credit report.
This tension of rights will surely raise legal disputes, as it did in the cases of Gloria and Google Spain. Authorities deciding on these matters will find a solution that could be either an extreme protection to one or more of the parties in conflict or find a reasonable balance to the interests and rights in conflict. The cases analysed in this research are two examples of how different jurisdictions and principles can strike a balance.
Chapter 3: The cases of Google Spain in the European Union and
Gloria in Colombia and their frameworks
3.1. The Google Spain case
In 2014, the CJEU ruled that search engines’ activity can be considered as data processing and, therefore, this activity was subject to the EU’s data protection regime. Consequently, the Court ruled that search engines are obliged to withdraw links from the list of results displayed after a name search.
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The case that brought this decision concerned Mario Costeja, a Spanish national with residence in Spain who filed a complaint at the AEPD against the newspaper La Vanguardia Ediciones, Google Spain, and Google Inc. He wanted the newspaper to be required to remove or alter two 1998 articles mentioning his name on a real estate auction linked to proceedings against him for social security debts. Moreover, Costeja sought that either Google Spain or Google Inc. be required to remove or conceal his personal data linked to the mentioned articles so that they no longer appear in search results.85 In their internal procedure, the AEPD rejected the complaint against La Vanguardia for being legally justified by publishing upon a public authority’s order as it was intended to give publicity to the aforementioned auction. Google Inc. was held subject to data protection legislation and was considered as obliged to eliminate the access to some data without it being necessary to be erased from its original source. Google Spain and Google Inc. brought actions before the Audiencia Nacional, a Spanish court which in turn referred questions to the CJEU.
The Audicencia Nacional raised three questions, two of them relevant for this research that can be summarised in the following manner: (a) can the search engine’s activity be considered as data processing and can a search engine operator be considered as the controller of such processing? and (b) do the rights to erasure and blocking of data provided in the Data Protection Directive imply a right of individuals to request search engines to withdraw information from search results, on the grounds that the content may be prejudicial or that they want to be ‘forgotten’ after certain time, even when that information is lawfully published by third parties?
Advocate General N. Jääskinen reasoned in his opinion that there should be an analysis through the lens of the right to protection of personal data in Article 8 of the Charter, right to respect for private and family life in Article 7, freedom of expression and information as protected in Article 11 (with respect to freedom of expression of publishers, freedom of expression of web pages and internet users’ right to receive information).86 Further in the
opinion, Jääskinen concluded that, when performing their service, search engines are
85 Google Spain v. Agencia Española de Protección de Datos (AEPD) and Mario Costeja González (n. 7) para
15.
86 Case C-131/12 Google Spain v. Agencia Española de Protección de Datos (AEPD) and Mario Costeja
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exercising freedom of expression and freedom to conduct business.87 Moreover, Jääskinen
argued that allowing data subjects to request search engines to prevent indexing information related to them would entail an unacceptable sacrifice of freedom of expression and information.88
The answer to both questions by the CJEU was affirmative. The CJEU determined that individuals have a right to request a delisting of specific links from the list of results that are displayed when a search is made on the basis of their name. This implies that links will show up in search results with different search entries. In this system, the news article about Mr. Costeja could show up by typing “La Vanguardia subasta 1998 seguridad social” (La Vanguardia auction 1998 social security).
This chapter will describe the main constitutional principles that could be considered as applicable to the case.
3.1.1. The legal framework surrounding the case
The Google Spain case comes in a legal framework that may seem confusing to outsiders. The European Court of Justice (ECJ) had held in 1969 that fundamental rights were enshrined as general principles of the Community and had to therefore be protected by the Court. 89 With the passing of time, the ECJ had recognised the special significance of the European Convention of Human Rights (ECHR) and, though not having jurisdiction in its interpretation, it referred to its provisions as well as to the case law of the European Court of Human Rights (ECtHR) as a source to construct its own case law regarding human rights at the EU level.90 While the EU is not a part of the ECHR, all of its member states are.
For many years until 2009, when the Treaty of Lisbon was adopted, the European Economic Community, the predecessor of the European Union, lacked a binding instrument protecting fundamental rights. Since 2009, the Charter of Fundamental Rights of the European Union (the EU charter), initially created in 2000, became guidance for judiciary decisions regarding
87 ibid para 132. 88 ibid para 133.
89 Laurent Pech, ‘Fundamental Rights Protection in the EU Post Lisbon Treaty’ (2010) 173 European Issues
1.
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European Union law.91 Furthermore, the Treaty of Lisbon also brought the inclusion of data
protection from Article 16(1) of the Treaty on the Functioning of the European Union.
The Charter’s legal effect, coupled with a continuous expansion of the scope of EU law and policy, has led to an increase of the Court of Justice of the European Union’s role as a human rights adjudicator.92
Three articles from the Charter are relevant for this research. Firstly, privacy is enshrined in Article 7 in the following terms:
“Everyone has the right to respect for his or her private and family life, home and communications.”
The first recognition of a right to data protection is provided in Article 8 in the following way:
“1. Everyone has the right to the protection of personal data concerning him or her. 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.
3. Compliance with these rules shall be subject to control by an independent authority.”
Article 11 brings protection to freedom of expression in the following sense:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
2. The freedom and pluralism of the media shall be respected.”
91 Laurent Pech, ‘Fundamental Rights Protection in the EU Post Lisbon Treaty’ (2010) 173 European Issues
1.
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Furthermore, Article 16(1) of the Treaty on the Functioning of the European Union enshrines data protection in the following way:
“Everyone has the right to the protection of personal data concerning them.”
These articles, as will be explained below, have only appeared quite recently in the CJEU’s decisions. However, the case law of the CJEU had developed some principles before the enactment and entry into force of the EU Charter. Some of the main trends and principles will be explained in the following subchapters.
3.1.1.1. On freedom of expression
Before the entry into force of the EU Charter, it had been emphasised that the ECJ had a slow but growing tendency to refer to freedom of expression as granted in Article 10 ECHR as well as the principles developed by the ECtHR. 93 On the other hand, there was a concern of possible divergent approaches from both Courts.94
With time, the CJEU increased its references to freedom of expression as a fundamental right in the content of its judgments. Though there have been cases regarding the conflict between freedom of expression and other rights (namely data protection, which will be explained further), most of the developments regarding the interpretation of this right came in judgments regarding copyright issues.95 One commentator has considered that, in some moments, the CJEU downgraded the role of freedom of expression probably due to a strong economical dimension of that Court and of the EU.96 Indeed, it has been argued until recently that the Court continues to pay more attention to rights with an economic nature or with an emphasis towards the original formation of the EU, such as the freedom to carry out business.97 On the other hand, this may be explained by a lack of interference of EU legislation into content-related matters, which have been left, with some specific exceptions,
93 Lorna Woods, 'Freedom of Expression in the European Union' (2006) 12 European Public Law 391. 94 ibid.
95Oreste Pollicino and Marco Bassini, ‘Free speech, defamation and the limits to freedom of expression in the
EU: a comparative analysis’ in Andrej Savin and Jan Trzaskowski (eds), Research Handbook on EU Internet Law (Edward Elgar Publishing Limited 2014) 535.
96 ibid 537. 97 ibid 541.
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to Member States.98 It is argued that the CJEU has found the digital context as having more
risks than opportunities in terms of freedom of expression’s exercise.99
In cases where freedom of expression was brought as an interest at stake, the Court has raised the need of balancing that right with other fundamental rights or interests.100 Before the Charter’s legal effect, the Court had specifically referenced Article 10(2) ECHR. This Article establishes that freedom of expression is subject to limitations justified by public interest objectives provided that they are in accordance with the law, motivated under one or more of the legitimate grounds established in the Article, and necessary in a democratic society, which implies a justification through a pressing social need that is also proportionate to the aim pursued.101
Moreover, the CJEU has provided that the discretion that national authorities have in the balancing of freedom of expression with other rights will vary from one goal to another and will depend on the nature of the activity. In that sense, restrictions to the exercise of freedom of expression which do not contribute to a discussion of the public interest, such as a commercial advertisement, when viewed in a context of the discretion granted to Member States, the restriction would only be reviewed for its reasonableness and proportionality.102
The Court has highlighted in freedom of expression cases that, when several rights and fundamental freedoms protected by the EU legal framework are at issue, the assessment of the possible disproportionality of EU law must aim at reconciling the requirements of the protection of those rights as well as a fair balance between them.103 Furthermore, the Court
has in some cases taken into account not only the publisher’s right to impart information but also the public’s right to receive it. When doing such a balance with other rights, the Court has considered in specific cases that, in order to guarantee the freedom to receive information and pluralism of the media, specific limitations to contractual freedom as a manifestation of freedom to conduct a business may be imposed.104
98 ibid 537. 99 ibid 541. 100 ibid.
101 Case C‑421/07 Frede Damgaard, [2009] ECLI:EU:C:2009:222 para 26 102 Ibid para 27.
103 Case C‑283/11 Sky Österreich GmbH v Österreichischer Rundfunk, [2013] ECLI:EU:C:2013:28 para 60. 104 ibid 66.
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When reflecting on the possibility of national courts to establish injunctions on internet service providers that allow access to copyrighted material online, the Court has said that those injunctions are possible as long as national courts: (a) do not create unnecessary deprivations to internet users’ possibility to lawfully access available information and; (b) the injunctions prevent unauthorised access to protected subject matter or, at worst, make it difficult to achieve and seriously discourage internet users from accessing the unlawful material.105
A similar reasoning has been given by the Court for injunctions requesting the imposition of filtering systems to prevent copyright infringements. The Court considered that filtering systems that require the monitoring of information for an indefinite time period would be contrary to the freedom to conduct a business as it would require the installation of costly measures.106 Furthermore, the Court considered that there would be a potential undermining of freedom of information, as filtering systems might not distinguish between lawful and unlawful content in an adequate manner, leading to the blocking of lawful communications.107 This reasoning could be seen as compatible with the ECtHR’s decision in Ahmet Yildirim, where the Court considered that a measure that leads to collateral censorship is incompatible with freedom of expression.108
Some decisions from the CJEU with repercussions for freedom of expression do not even mention the right. An example of this occurred only months after Google Spain in Papasavvas v. O Fileleftheros, where the Court ruled that limitations of civil liability in EU law do not apply to online newspapers remunerated by income generated by commercial advertisements, a matter with direct effect on those media outlet’s freedom of expression.109
3.1.1.2. On privacy and data protection
105 Case C‑314/12 UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH, Wega
Filmproduktionsgesellschaft mbH [2014] ECLI:EU:C:2014:192.
106 Case C‑360/10 Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v Netlog NV
[2012] ECLI:EU:C:2012:85 para 46.
107 Ibid.
108 Ahmet Yildirim v Turkey 3111/10 ECHR 447 (2012).
109 Case C‑291/13 Sotiris Papasavvas v O Fileleftheros Dimosia Etairia Ltd, Takis Kounnafi, Giorgos Sertis,
