Diritto & Internet

Spain demands the right to oblivion for its citizens

The right to oblivion on the Internet is again at the centre of the international debate.

This time attention is focused on Spain where at the beginning of the year the Agencia Española de Protección de Datos (AEPD) ordered Google to remove certain links to pages hosting personal information regarding Spanish citizens from its results.

These are a certain number of pages, most of which are newspaper articles, containing news which can be interpreted as damaging for the reputations of the subjects involved. One particular case stands out: that of Doctor Hugo Guidotti Russo, a plastic surgeon who in 1991 was involved in a case of medical malpractice and who is now asking Google to remove the related articles from search results connected with his name.

However, the Spanish Authority’s decision met with a stance of non-collaboration on the part of the Mountain View Company which announced that it had no intention of carrying out what it considers censorship of its results.

In January the controversy between Google and the Spanish Authority ended up in a Madrid Court, where both parties asked the judge to find in favour of the protection of important rights: the Authority asked for the protection of the right to privacy and the right to oblivion whereas Google asked for the protection of the right to inform and freedom of speech.

As reported in the Wall Street Journal, during the trial a lawyer representing Google stated that Spain is the only country where a company is obliged to remove links to Web pages even if these do not contain illegal content of any description.

The Spanish Authority replied that the only way to block access to content is through search engines. This is because newspapers online have the right to refuse to remove legally published news from their archives.

Several weeks later the Madrid Court asked the European Court of Justice for its opinion on the matter. This Court will now have to establish whether the Spanish Authority’s requests are compatible with Community legislation.

The European Court’s decision is awaited with growing interest both in Europe and in the US in that it may establish a decisive precedent for the future of the availability of archive information on the Internet.

This issue is particularly relevant as an overhaul of the EU’s 15-year-old data-protection law is awaited within the next year or two. Currently the main topic of the European debate is conciliation between freedom of speech and the right to privacy.

In November during a conference in Brussels Viviane Reding, the European Commissioner for Justice, stated:

“As somebody once said: “God forgives and forgets but the Web never does!” This is why the “right to be forgotten” is so important for me. With more and more private data floating around the Web – especially on social networking sites – people should have the right to have their data completely removed.”

However, not all data is equal. It should be possible to distinguish between information voluntarily put on a social network site and information published in newspaper articles of global interest, such as those regarding murders. This is what Google’s Global Privacy Counsel Peter Fleischer declares in a post published on his personal blog where he asks for greater clarity regarding the uniquely European concept of the right to oblivion.

Peter Fleischer, who was last year sentenced to six months’ imprisonment by the Milan Court in the Vividown vs. Google case, wonders how a national law could successfully issue orders to remove links that are used globally to search for information.

Fleischer uses the precise case of Google/Vividown as a reference for a reflection that has also been reported by the American press:

“The web is littered with references to my criminal conviction in Italy, but I respect the right of journalists and others to write about it, with no illusion that I should have a “right” to delete all references to it at some point in the future. But all of my empathy for wanting to let people edit-out some of the bad things of their past doesn’t change my conviction that history should be remembered, not forgotten, even if it’s painful. Culture is memory.”

Clearly the debate is still open. For a broader in depth analysis of the various points of view we suggest you should read the relevant pages from The Guardian, El Paìs, The Wall Street Journal and Forbes Magazine.

We also recommend EU commissioner Viviane Reding’s speech and Peter Fleischer’s blog.


Add comment

Scientific Director
Prof. Avv. Giusella Finocchiaro
Editorial Curator
Dott. Giulia Giapponesi

Lo Studio Legale Finocchiaro prosegue la sua attività con DigitalMediaLaws, la nuova società tra Avvocati fondata dalla Prof.ssa Avv. Giusella Finocchiaro e dal Prof. Avv. Oreste Pollicino.

Visita il sito di DigitalMediaLaws