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“Community law does not protect against claims of the party concerned when directed at a service lender in order to stop them from indexing harmful information, when it is legally published by a third party, on the grounds that, the party does not wish internet users to be able to access said information and instead wish for it to be forgotten”.

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This was the answer proposed by the Advocate General* of the European Court of Justice, to the question posed by the National High Court, for the matter of Google Spain S.L. vs. The Spanish Data Protection Agency (AEPD). The Advocate General is clear about this matter: ““Community law does not protect against claims of the party concerned when directed at a service lender in order to stop them from indexing harmful information, when it is legally published by a third party, on the grounds that, the party does not wish internet users to be able to access said information and instead wish for it to be forgotten”.

The analysis proves that technology was not developed in order to invade people’s privacy, given that search engines respond to the need to find disperse information on the internet.

In this case, the problem is in determining if the right to cancellation and blocking of personal data is applicable against the company responsible for the search engine that had indexed the information. Individual rights are put up against rights of third parties, i.e. the internet users that access indexed information from the search engine. This is causing the regulation on data protection in relation to the instruments of the protection of fundamental rights to be analysed, weighing up the interests in question.

In the matter of Google vs. AEPD, the right to oblivion is established as someone’s wish to stop internet users from accessing certain information because it is harmful to them. But the party concerned does not oppose to the veracity of this data, nor does it question the legality of its publication. What the party is attempting to do is to bury history. It is attempting to hide and obscure something, without any justification apart from personal desire. For this reason, its aim clashes with the right to information and freedom of expression.

Oblivion is not a right if used in order to hide information. The correction or deletion of information is not meant to exempt a person. Conversely, a very different effect may be reached using the same tool, that is to say, updating the data with current information and therefore without having to delete the past information.

In a democratic society, transparency is essential and the information society is the best vehicle for it, and it calls on the responsibility of individuals in order to manage errors positively, taking from it the lessons that it provides, instead of pretending that “it never happened”.

Essentially, the conclusions for the Advocate General lead us to consider that technology is neutral. It is not possible to blame actions carried out automatically by a search engine, as long as the codes of exclusion are respected, as well as the need to update information.

The right to oblivion should not be configured as an exceptionally powerful right, but instead it should respect the legal framework of the protection of fundamental rights, with limits that allow for the balance of freedom and rights of third parties.

 

(*) Niilo Jääskinen. Conclusions of the Advocate General, presented on the 25th of June, 2013. Matter C-131/12

Jose María Dutilh

Jose María Dutilh

Socio Director de la Firma de Abogados LeQuid, especializada en Derecho de los Negocios y de las Empresas Sociales, estoy plenamente convencido de que el desarrollo empresarial rentable y eficiente no sólo es compatible sino que necesita la ética empresarial. En la actualidad, desde LeQuid colaboro con empresarios que necesitan una segunda oportunidad a través de estos procesos; Apoyo legal en el día a día, Re emprendimiento socialmente responsable, Fusiones y Adquisiciones, Reestructuración y Refinanciación de empresas o Concurso de acreedores entre otros.

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