Monday 19 May 2014

Mr Gonzalez and Google

Important as it can be, this blog does not often report on matters to do with the European Union (EU).  The Court of Justice of the EU has just struck a blow for individual rights to privacy and data protection but this also presents a considerable challenge to online freedom of expression and information.

The various institutions of the EU operate under the terms of the Treaty on the Functioning of the EU (or TFEU) - see the consolidated versions of the treaties. 

So far as the Court of Justice of the EU (CJEU) is concerned, TFEU Article 19 states:

1.   The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed.
Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.
2.   The Court of Justice shall consist of one judge from each Member State. It shall be assisted by Advocates-General.
The General Court shall include at least one judge per Member State.
The Judges and the Advocates-General of the Court of Justice and the Judges of the General Court shall be chosen from persons whose independence is beyond doubt and who satisfy the conditions set out in Articles 253 and 254 of the Treaty on the Functioning of the European Union. They shall be appointed by common accord of the governments of the Member States for six years. Retiring Judges and Advocates-General may be reappointed.
3.   The Court of Justice of the European Union shall, in accordance with the Treaties:
a) rule on actions brought by a Member State, an institution or a natural or legal person;
b) give preliminary rulings, at the request of courts or tribunals of the Member States, on the interpretation of Union law or the validity of acts adopted by the institutions;
c) rule in other cases provided for in the Treaties.

In a case brought by Mario Costeja Gonzalez
against Google Spain, a preliminary ruling was requested by the Audiencia Nacional in Spain.  Such rulings are permissible under TFEU Article 267.  

The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:
         a) the interpretation of the Treaties; 
            b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union
Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.
If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.

Mr Gonzalez argued that when an internet user entered his name in the search engine of the Google Group, the list of results displayed links to media reports published in 1998 about a real estate auction following attachment proceedings for the recovery of social security debts owed by Gonzalez.   The matter had been settled for a number of years and Gonzalez did not wish searches to reveal it.

On the preliminary reference, the CJEU ruled that in certain circumstances the "operator" (Google in the case) is obliged to remove links to web pages published by third parties (such as newspapers) and which contain information relating to a person.  A fair balance had to be sought between those seeking the information and the individual "data-subject" rights to privacy and protection of personal data.

The CJEU judgment concerned the interpretation of  EU Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data.  The court's judgment is HERE and a PRESS RELEASE was also issued.

Individuals inevitably have certain information they wish to keep private and their reasons for doing so vary considerably.  It is reported that, following the ruling, a considerable number of "take down" requests have been sent to Google - see BBC 15th May - Politician and paedophile ask Google to 'be forgotten'

UK Constitutional Law Association takes a look at the judgment and its likely impact - David Erdos: CJEU judgment profoundly challenges the current realities of freedom of expression and information online

See also the Information Commissioner's Office blog - Four things we've learned from the EU Google judgment


D. Erdos, ‘Mind the Gap’ Open Democracy (15th May 2014) (available at OpenDemocracy) OR D. Erdos, ‘Mind the Gap – The CJEU Google Spain Judgment Profoundly Challenges the Current Realities of Freedom of Expression and Information Online’ U.K. Const. L. Blog (15th May 2014) (available at

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