Opinion of Advocate General Jääskinen delivered on 25 June 2013, Case C-131/12, Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (AEPD), Mario Costeja González (Eurpean Court of Justice, 13 May 2014).
right to be forgotten (3): 3. Regarding the scope of the right of erasure and/or the right to object, in relation to the "derecho al olvido" (the "right to be forgotten"), the following question is asked:
¶ 3.1. must it be considered that the rights to erasure and blocking of data, provided for in Article 12(b), and the right to object, provided for by Article 14(a), of [the Directive], extend to enabling the data subject to address himself to search engines in order to prevent indexing of the information relating to him personally, published on third parties’ web pages, invoking his wish that such information should not be known to internet users when he considers that it might be prejudicial to him or he wishes it to be consigned to oblivion, even though the information in question has been lawfully published by third parties?’ (†542)
right to be forgotten (110): For the sake of completeness it is useful to recall that the Commission Proposal for a General Data Protection Regulation provides in its Article 17 for a right to be forgotten. However, the proposal seems have met with considerable opposition, and it does not purport to represent a codification of existing law, but an important legal innovation.
(†543)
right to be forgotten (133): The particularly complex and difficult constellation of fundamental rights that this case presents prevents justification for reinforcing the data subjects’ legal position under the Directive, and imbuing it with a right to be forgotten. This would entail sacrificing pivotal rights such as freedom of expression and information. I would also discourage the Court from concluding that these conflicting interests could satisfactorily be balanced in individual cases on a case‑by‑case basis, with the judgment to be left to the internet search engine service provider. Such ‘notice and take down procedures’, if required by the Court, are likely either to lead to the automatic withdrawal of links to any objected contents or to an unmanageable number of requests handled by the most popular and important internet search engine service providers. (95) In this context it is necessary to recall that ‘notice and take down procedures’ that appear in the ecommerce Directive 2000/31 relate to unlawful content, but in the context of the case at hand we are faced with a request for suppressing legitimate and legal information that has entered the public sphere. (†544)
right to be forgotten (127-128): 127. The European Court of Human Rights held in the Aleksey Ovchinnikov case (91) that ‘in certain circumstances a restriction on reproducing information that has already entered the public domain may be justified, for example to prevent further airing of the details of an individual’s private life which do not come within the scope of any political or public debate on a matter of general importance’. The fundamental right to protection of private life can thus in principle be invoked even if the information concerned is already in the public domain.
¶ 128. However, a data subject’s right to protection of his private life must be balanced with other fundamental rights, especially with freedom of expression and freedom of information. (†552)
