Why Google refuses to forget

Many people are calling on the search engine to delete links to information they see as damaging The Spanish Data Protection Agency is giving its backing to these legal battles


While us humans forget a whole number of things on a daily basis - whether on purpose, by mistake or by coincidence - Google never forgets anything.

Mario Costeja wants to forget, but the search engine won't let him. Every day it reminds him, if he types in his name, that several years ago he incurred a debt with the Social Security system that resulted in his properties being auctioned off. The auction was announced in a print newspaper by order of the Labor Ministry and several years later, when that newspaper digitized its contents, the information started showing up in Google searches.

Today the debt has been cleared, and so Costeja asked the publisher of the newspaper to delete the information. He also asked Google to remove the search result that links his name to an embargo for non-payment. The case has now made its way to the European Court of Justice, after the Spanish Data Protection Agency (AEPD) urged the internet giant to withdraw the result from its index and the company appealed the decision at the National High Court.

The European court's conclusions on the "right to be forgotten" have caused a stir

The conclusions of the European Court Advocate General relating to the so-called "right to be forgotten" - which are not binding, but will be taken into account when the National High Court passes sentence in a few months' time - have caused a stir. The right does not feature in European data-protection regulations, nor in Spanish legislation. In the opinion of the advocate general, a national authority cannot force a search engine to withdraw information relating to third parties from its index, except in the situation that it has ignored an order from the publisher of the original webpage not to show or store it, or it has ignored a request to update its cache. The entity responsible for the information on a legal data-protection basis is not the search engine, but the publisher.

The advocate general says that requesting that search engines delete legitimate and legal information published by others would infringe upon freedom of expression and equate to giving individuals powers of censorship. If the content to be deleted is illicit or inappropriate, it is no longer a data-protection problem. "The court normally follows the opinions of the advocate in 80 percent of cases," explains Rafael García de Poyo of law firm Osborne Clarke.

Google has appealed all the resolutions issued by the AEPD that go against its interests to the High Court. Confronted with a lack of resources, the court - which is handling around 200 proceedings - had opted to consult Luxembourg on the matter. Those affected, such as Costeja, feel as if their past is chasing after them. In their fight to get information they think damages them deleted, many have found protection in the AEPD. Others have gone to the courts, which then have to decide if the right to a private and family life and data protection takes precedence over freedom of expression and information, as well as the company's freedom.

A man who broke the hand off the Cibeles statue wants his data removed

The AEPD says the advocate general has overlooked important aspects. "What happens if the person affected cannot locate the publisher?" asks AEPD director José Luis Rodríguez. "Is it not a lot of work to go from source to source asking for the information to be deleted?"

Another key aspect of the report is that the advocate general considers that Google is subject to European data-protection regulations, something the company rejects. "We are not against the right to be forgotten, but we are not owners of that information," a Google spokeswoman argues.

What follows are some of the cases of people who have sought protection from the internet giant with the AEPD: some got it, others didn't. All hope that one day they will be able to type their name into Google and be pleasantly surprised. The ruling of the European court will mark the path to be followed.

  • A prison warden in fear of ETA. A prison guard turned to the AEPD to stop Google from circulating two resolutions published in the official prison service gazette in 1998 and 1996, one of them relating to a disciplinary measure imposed on him. The digitization of the official gazettes flooded the internet with information that until then had only been available in the archives. The guard was concerned about the "social rejection" that might result from someone learning he had been subject to disciplinary proceedings, and also from the fact that "elements from the ETA terrorist group" could access his personal data, given that prison wardens were a clear target of the organization. Google replied that it couldn't withdraw the data as it was located on webpages belonging to third parties. But the AEPD thought that there were "justified and legitimate motives" and ordered the search engine to withdraw the information from its index. In the end the official gazette excluded the information from the results available via the search engine.
  • Convicted of damaging Cibeles. A man turned to the AEPD after a Madrid court ruling was published that found him guilty of the crime of damaging national heritage, after he broke off the hand of the famous Cibeles statue in the center of the capital. After having been carried in several media outlets - among them EL PAÍS - the ruling was still to be found on Google seven years after the incident, when his record had been expunged. The man claimed the information was causing him "social and material damage." The AEPD accepted the complaint because the situation affected the person in a "justified and legitimate way." "It is necessary to reiterate the multiplicative informative effects produced by the internet and, to a greater extent, by the search engines," the resolution states. Google appealed the decision. "In no case have these media outlets been urged to delete the information, limit its circulation or exclude it from search engines," said Javier Martínez Baviere, of law firm Pedro Alemán, one of the lawyers representing the company.
  • Gender violence victim. A woman approached the AEPD in 2008 to request that Google delete links to school webpages in which the names of her four children appear as participants in after-school activities, on university entrance exam pass lists or as recipients of free school meals. "For reasons of safety relating to her ex-spouse," the woman did not want the names and addresses of her family appearing in search engine results. Google claimed that the complaint ought to be directed to its parent company, Google Inc, as it considers this entity to be responsible for its internet search service - something it is always repeating.
  • Suspect in a corruption plot. In 2011 the AEPD had to investigate a request from a person for Google to remove links to several webpages containing news stories in different sections of the media in which they figured as a named suspect in an corruption investigation. The AEPD did not accept the request as it considered that the case was clearly in the public interest and the person involved had not been able to prove that the information was inaccurate or had become obsolete.
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