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Court of Appeals clarifies ‘the right to be forgotten’ by search engines in The Netherlands

07/04/2015

The past months several judgments have been issued in The Netherlands in conflicts between natural persons and Google regarding the question of whether Google has an obligation to – at request – remove certain links to web pages from its search results (enable people to ‘be forgotten’). The balancing of interests that has to be carried out in that context, has until now been in favour of Google, although the recent judgment by the Amsterdam Court of Appeals dated 31 March 2015 indicates that this does not necessarily have to stay this way.

Object to search results

Since the Court of Justice of the European Union (“European Court”)’s controversial Google Spain judgment in 2014 (read our earlier item here) it seemed to be feasible for a large number of people to successfully object to Google’s processing of their personal data in the form of listing person-related search results. The right to protection of personal data of the data-subject (the person whose data is involved) overrides after all, as a rule, the right of Google to process that data (by listing and ordering it) and the right of the public to access information, according to the European Court. Only if there are particular reasons for it, a preponderant interest of the public – in the context of a search – to access information can be substantiated.

A search engine like Google has a legitimate interest in processing personal data of natural persons, not in the least because a search engine fulfils an important societal role in navigating the Internet. In determining this ‘legitimate interest’, the operator of a search engine – when processing personal data – has to weigh its own interests against those of the data-subjects, in particular their fundamental right to privacy. This follows from section 7(f) Personal data protection directive (95/46/EC), which has been implemented in local law. The European Court bases the right to be forgotten online on the already existing right to ‘object’ to the processing of personal data. This right can be invoked on compelling legitimate grounds relating to the data-subject’s particular situation, and in particular in relation to processing activities carried out under section 7(f) of the directive.

Two recent Dutch cases

So even though as a rule the rights of natural persons prevail over those of a search engine and over the right of the public to access the information, this is not always actually the case. After Google received (and (partly) rejected) ‘requests to forget’ from a business person and a convicted criminal, the persons in question turned to the court. The first case resulted in a preliminary judgment of the preliminary rulings judge of the Amsterdam District Court (12 February 2015), the second in a judgment from the Amsterdam Court of Appeals dated 31 March 2015 (appeal against a preliminary judgment of 18 September 2014).

Preliminary rulings judge Amsterdam District Court 12 February 2015

The first case was initiated by a KPMG partner. He objected to search results that referred to news items which reported that he had been living in a container for some time, due to a dispute between him and a contractor who renovated his home. The judge, in brief, finds that Google’s right to the freedom of information prevails over the rights of the business person, meaning that Google does not have to delete any links. Remarkable is that the preliminary rulings judge does not seem to interpret the Google Spain judgment correctly. He considers the right to be forgotten to be the exception to the rule (consideration 4.7.), while – as said above – the European Court in Google Spain said that the prevailing rights – to privacy and the protection of personal data – of the data-subject should be the starting point. This calls for a different approach to the weighing of interests than the one applied by the preliminary rulings judge here.

Amsterdam Court of Appeals 31 March 2015

The Court of Appeals case was about a convicted criminal who had been involved in ‘escort services’ (a.k.a. prostitution). Already in the first instance, the preliminary rulings judge ruled – inter alia – that links to web pages about the criminal did not have to be deleted by Google. In doing so, the judge used a peculiar interpretation of Google Spain by considering that one may only object to search results that are “unnecessarily defamatory” or “extortionate”; criteria not used by the European Court. In the appeals judgment, these concepts are nowhere to be found and the Amsterdam Court states – where it regards the deletion of links to search results – that the data-subject is entitled to object to the processing of his personal data if such processing is incompatible with the Personal data protection directive. The Court adds (consideration 3.5):

Such incompatibility cannot only be the consequence of the incorrectness of the data but also because they are inadequate, irrelevant or excessive for the purposes of the processing, because they have not been kept up to date or because they are being stored longer than necessary. The fundamental rights contained in section 7 and 8 of the European Union’s Charter of fundamental rights entitle the data-subject to demand that information relating to him is no longer included in a search engine’s list of search results and made available to the general public. This will however not be the case if the intrusion of the data-subject’s fundamental rights is justified by the preponderant interest of the public to access that information, given the position that this person has in public society.

The criminal’s request for removal is denied because the public generally has a large interest in obtaining access to information regarding serious offenses, including information regarding the criminal prosecution and conviction of the criminal.

Future application of the Google Spain judgment

The Amsterdam Court of Appeals (finally) applies the Google Spain criteria correctly. Even though, the court eventually concludes that the links do not have to be removed because they are still up-to-date and relevant and because the public – in this specific case – has a preponderant interest in taking note of the relevant links. I think this is a correct approach. Masking search results by Google should be restricted to those situations where the data-subject has a right to object and a particular link is incorrect, inadequate, irrelevant or excessive for the purposes of the processing. In judgments from before 31 March 2015 however, the Dutch courts seemed inclined to apply the Google Spain criteria less in favour of the data-subject than the European Court would. Correct application of the considerations of the Amsterdam Court of Appeals will in practice mean that the average, non-convicted data-subject should be able to, more easily than before, object to certain search results in The Netherlands, applying the Google Spain criteria. Whether this is socially desirable, is up for debate.

Authors

Jurre Reus