On June 25, 2013 the European Union Court rendered an opinion by one of the Advocate General’s [read below about the court structure] in the case brought by Google vs. the Spanish Protection Agency. In the opinion, Advocate General Jääskinen, stated that he considered that search engine service providers, such as Google, are not responsible regarding the Data Protection Directive for personal data appearing on webpages they process. The opinion has three findings one of which addresses the issue of personal data and the “right to be forgotten” by the individual, if the individual wants the data posted to be removed. “the Directive does not establish a General ‘right to be forgotten’. Such a right cannot therefore be invoked against search engine service providers on the basis of the Directive even when it is interpreted in accordance with the Charter of Fundamental Rights of the European Union”.
The Advocate General’s Opinion is not binding on the Court of Justice It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the Court are now beginning their deliberations in this case. Judgment will be given at a later date.
Therefore, we do not know at this time if this opinion will encourage the EU Council to cease the provision of “right to be forgotten” in their Proposed Data Protection Regulation. In addition, the section of the proposed regulation that pertains to historical research and documents would not necessarily be affected by the “right to be forgotten” .
European Court of Justice Structure
The European Court of Justice, based in Luxembourg interprets EU law to make certain it is applied in the same way in all EU countries. It also settles disputes between EU governments and EU institutions. There is one judge per EU country. The Court is helped by eight ‘advocates-general’ whose job is to present opinions on the cases brought before the Court. Advocates-general are only required to give their opinion on the case if the Court believes that the particular case raises a new point of law. The Court does not necessarily follow the advocate-general's opinion. To learn more about the EU Court go to: http://europa.eu/about-eu/institutions-bodies/court-justice/
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To read more about this court decision see: http://www.huffingtonpost.ca/2013/06/25/google-right-to-be-forgotten_n_3494542.html and http://euobserver.com/news/120650
Thank you to Eden Joachim, President of the LitVak SIG for providing us with information on the Court’s Advocate General opinion.
Jan Meisels Allen
IAJGS Vice President
Chairperson, IAJGS Public Records Access Monitoring Committee