The Court of Justice of the European Union issued a ruling a few days ago on a Preliminary Question referred to it by the National High Court (case C-131/12), known as the “Costeja Case”, firstly, that Google is responsible for the processing of personal data in connection with the business activity it carries out, irrespective of the role played by the Web host whose content is indexed by Google; and secondly, that Google is bound by law, in this case, Spanish law, having established an affiliate which carries out promotional activities and the sale of advertising in Spanish territory, as processing is not done not through the establishment of the said affiliate but within the framework of its activities.
Thirdly, it is recognized that the Data Protection Directive guarantees the so-called “right to be forgotten”, that is, the possibility that the search engine may have to eliminate content with personal data although the said information may be true and is not eliminated from the website which contains it, albeit such a decision has to be reached taking into account the possible public interest in obtaining the said information, based on the role, public or otherwise, of the data subject.
The judgment commented on has been warmly welcomed in certain sectors, but one certainty is that it gives rise to a considerable variety of problems: on the one hand, it establishes a different system of responsibility for Web browsers and communication media, which is, to say the least, questionable. On the other hand, in addition to balancing the public interest, the balancing of other types of democratic interests and values should also be considered, these being freedom of expression or the right to information. The latter is, obviously, a technical problem: the weighing and balancing of competing values: Who has to do it? The search engine or third parties? Should the latter convert itself into a supervisory organ or an infiltrator? Should this be the case, could it do so legally? Would such supervision be effective, and, would it include the elimination of content by the Web browser? We have to consider that the information will remain, in any event, on the original website… although Google no longer indexes it in searches.
Finally, given all these questions, it remains to be seen how national courts carry out the possible implementation of this decision of the CJEU.