Opinion Of EU Advocate General On Right To Be Forgotten And (Territorial) Application Of Data Protection Rules To Search Engines

On 25 June 2013, Advocate General Jääskinen (the "AG") delivered his opinion in case C-131/12 Google Spain and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González before the Court of Justice of the European Union ("ECJ"). This case is the first to address the European Data Protection Directive 95/46/EC (the 'Directive') in the context of internet search engines.

The opinion arose in the context of a reference for a preliminary ruling by the Audiencia Nacional (the National High Court of Spain) in the course of proceedings between Google Spain and Google Inc., the Spanish national data protection authority (the "AEPD") and Mario Costeja González, the data subject. The data subject had had information regarding social security debts printed in a Spanish newspaper, which was subsequently made available on the internet. The data subject sought to have this information removed from the search results presented by the internet search operated by Google. He first addressed his query directly to the publisher to have this information removed from the online version of the newspaper. He then contacted Google Spain, seeking to have the search results amended. Mr. Costeja González did not want any links to the newspaper to be shown when a search was conducted on the basis of his name and surname.

Mr. Costeja González presumably received no satisfactory response and lodged a complaint with the AEPD, which was upheld. The AEPD called on Google Spain and Google Inc. to take measures to withdraw the data subject's information from the index and to make future access impossible. This decision was appealed by Google before the national court, which stayed the proceedings and referred several questions to the ECJ.

The questions concern three main issues: the territorial scope of and the applicable national law under the Directive; whether search engine providers are data controllers; and whether there is a right to be forgotten.

Territorial scope

In examining the first question regarding territoriality, the AG pointed out that the mere fact that Google's search engine targeted Spanish users could not trigger the application of Spanish data protection law. The AG also rejected the possibility of adding an entirely new criterion (such as the "centre of gravity of the dispute") to Article 4 (1) of the Directive, which fully harmonises the territorial scope of application of the Directive.

The AG instead considered that the...