Mario Cotija vs. Google How can freedom of expression, data protection and reputation management coexist?
The Court of Justice of the European Union (the “CJEU”) has finally resolved , in its judgment of May 13, 2014, the preliminary ruling (case C-131/12) that the National High Court referred through the order of 27 February 2012. The case dates back to 2010, when Mr. Cotija filed a claim with the AEPD against La Vanguard and against Google Spain and Google Inc. Mr. Cotija alleged that when an Internet user entered his name in the Google search engine Also read: derecho al olvido.
He obtained as The result was some links to two pages of the newspaper La Vanguard from 1998, in which an auction of real estate was announce due to an embargo for the collection of amount own to Social Security. This fact suppose, in his opinion, a clear damage to his reputation since, unlike the print edition of the media, the Internet is a support that maintain the “trace” of what is publish. In this environment,
Mr. Cotija then request that La Vanguard be require to remove these page, or that it use the tool provide by search engine to protect this data. In addition, he request that Google be require to remove his personal data from search engine result. The AEPD dismissed the claim against La Vanguard, considering that the publisher had legally published the information.
However, it upheld the claim as far as Google was concerned, requiring the search engine to take the necessary steps to remove the data from its index and make it impossible to access it in the future. Google Spain and Google Inc. appealed the resolution before the National High Court, requesting that the AEPD’s resolution.
At that time, the National High Court posed a series of questions to the Court of Justice , mainly:
- whether or not search engines perform data processing;
- if the Spanish subsidiaries of the search engines carry out data processing as a result of their activities; Y
- if the interest party can go against the search engine to prevent the indexing of the information referring to their person, even if it is information lawfully published by third part.
The three most relevant conclusions of the CJEU ruling are the following:
- Google is responsible for the processing of personal data: The CJEU concludes that the activity of a search engine must be classified as processing personal data and considers the search engine responsible for such processing, all regardless of the role that the owner of the search engine may play. indexed website Also read: sharenting que es.
- Spanish law applies: Each of Google’s establishments in a country of the European Union must comply with the obligations imposed by the national law applicable to those activities. When the operator of the search engine creates in a Member State a branch or a subsidiary intended to guarantee the promotion and sale of advertising, the law of that territory will be applicable. In this case, it consider that the treatment is carry out in Spain because it is not require that it be carry out “by” the establishment itself, but rather that it be carry out within “the framework of the activities” of the latter.
- The so-call right to be forgot is recognize under the protection of the Data Protection Directive. The main novelty of the ruling is that under the protection of data protection legislation. The possibility of removing from the search engine information that contain personal data. Even if said information is true and lawful and is not remove from the website of origin. In any case according to the ruling there must be a weighting to determine. Whether the public interest in accessing that information can prevail in particular based. On the role that the affected person plays in public life.
However, this CJEU ruling raises a series of problems and questions. Both from a technical-legal point of view and from the future application. In reputation management and its reflection in the media:
- The CJEU concludes that search engines should not have the same protection as the media. The ruling distinguishes between the legal regime applicable. When there is a journalistic purpose and that applicable to the activity of search engines. It can lead to the paradox that the right to object can be demand against the Google search engine. But not against the newspaper that publish the new index by Google.
- The right to be forgot must be carefully balance to preserve other fundamental rights of democratic society. Such as the right to information or freedom of expression. These rights cannot be unreasonably restrict or curtail by citizen. Who wish to remove truthful information from the search engine based on data protection.
These right which are protect by the public interest may be present. For example in case of pardons or sanctioning administrative resolution. Those respond to legal imperatives (the one that requires the publication of pardons in bulletins dates back to June 18, 1870, but is still in force). So they should not violate the right to honor or privacy. Although they may discredit or affect the reputation of the person involved. At least in the case of pardons, there are also other requirements.
These acts are characterize by their exceptionality. As they are conceive as a grace from the Government. So their transparency and knowledge by the public are widely justify. Another assumption that poses an enormous complexity is that relate to the content. On criminal procedure since it could be interpret that, after a certain period of time.
There is no longer a general interest and, therefore, they would not be cover by the right to privacy. information. What would happen if a person who has committed serious crimes of prevarication decides to later dedicate himself to politics? Wouldn’t citizens have the right to know about a criminal past. That could affect the exercise of their function as politicians?
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