The Court of Justice of the European Union (“CJEU”) in Luxembourg heard argument yesterday concerning the “right to be forgotten”—specifically, whether search engines such as Google must block search results when asked by European citizens to remove references to themselves. 

This particular case—which is representative of approximately 200 similar cases in Spain—came before the CJEU when Google declined to comply with an order from the Spanish Data Protection Authority.  A Spanish citizen, Costeja, wanted Google to de-list references to a publication in a Spanish newspaper in 1998, which discussed the auction of Costeja’s house in connection with his failure to pay social insurance contributions.

Google has taken the position that search engines should not be obligated to remove links to valid (i.e., non-incorrect, defamatory, or otherwise illegal) material that exists online.  Rather, only the original publisher can make the decision to remove such content, at which point it will disappear from the search engine index once removed from source webpages. 

Costeja’s lawyers, the Spanish and Austrian Governments, and the European Commission, by contrast, argued that without the help of Google, people would be unlikely to come across the original publication, such that it is the dissemination of the link by Google that violates Costeja’s rights.  This view puts the European Commission in conflict with a 2008 opinion from the Article 29 Working Party, which did not place such an obligation on search engines.

The European Commission also asserted at the hearing that Google’s physical data center in Spain, on which the contested indexing links were stored, created the requisite “nexus to the Union” obligating Google to remove the link and ensure that it is deleted worldwide.  This argument poses a number of extraterritoriality questions, including, for example—as was queried at the hearing—whether the Chinese government could make use of EU data protection authorities to demand the removal, globally, of references to dissidents.

MEP Jan Philipp Albrecht’s draft report on the proposed EU Data Protection Regulation, which was released in early 2013 (described here), contains a right to be forgotten, albeit a more limited right than that in the original General Data Protection Regulation proposed by the European Commission.  Specifically, it suggests that data controllers would not be required to take steps to request that third parties erase personal data about a requesting data subject, if the initial processing was conducted with the data subject’s consent or based on other legal grounds.

The right to be forgotten can be contemplated in three categories, of increasing degree of controversy:  (1) The right to have content you posted deleted; (2) The right to have content you posted deleted from another site on which it was reposted by someone else; and (3) the right to delete content about you posted by someone else.

Although an opinion in the Google case is not expected until June, we will update you with any developments.