'The Pathway to Google Spain': Artemi Lombarte

Thank you very much to those organizing this conference for inviting me to participate here. It is a great pleasure, and I don’t know if you’re aware, all of you, but Professor Erdos is a visionary. He has one of the best qualities for academics because three years ago, he organized a very successful conference focused on the right to be forgotten. And three years ago, it was not so clear that this will be a so famous or successful topic - the right to be forgotten and how the European court would resolve the topic then. I have to declare that he is really a visionary.

He has asked me to talk about the origin of the case, and I will try to do my best. Before 2007, there were not so many cases in the Spanish Agency related to the Internet - no significant cases. The story of the right to be forgotten, it started in 2007, with a first case. Related—because this is the beginning of our history — related especially to personal information in the official gazettes. A man in the eighties, a young man, was fined by the local police for urinating in a public street. The police were not able to notify this administrative sanction in the postal address, and the Spanish law established that it’s possible to notify, in these cases, by publishing this resolution in an official gazette.

The notification was published in an official gazette thirty five years ago. All these papers at this time, who no one read at this time, were digitized. Currently, in 2007, this man—a professor, director of a high school — could check like all his students every first September through the Internet. And he found that thirty years ago, when he was young, he was urinating in the public street. This is a funny case, maybe, for it's possible some of you have a smile for this case, but I’m sure that for this data subject it was not so funny a case.

He complained and he reached a positive resolution. The Spanish Agency ordered Google to erase links and avoid future access. Official gazette where at the beginning the problem, because it is obliged to publish many personal information. For example – pardons. The pardon law in Spain, is obliged to publish the government resolution of pardon. In this case, like many others, the man was pardoned, the pardon decree was published in the official gazette. At the beginning, thirty years ago or twenty years ago no one read this kind of information, the news this official gazette had written. No one was interested. But all of them were digitized. And as seen in this case and many others, they found that everyone with access to the Internet could read about this information.

The Spanish Agency ordered Google to take the necessary measures to remove the results of the index and to avoid future access. And to the official gazette, the Spanish agency obliged to take the necessary measure—not to delete because there is a law which obliges them to publish this information - but to take the necessary measures to avoid future indexing. That means to use tools like the robots txt.

We could talk very much about the official gazettes; for example, other laws established that civil servants’ sanctions, disciplinary sanctions, must be published in the official gazette. In this case, a person – civil servant – was sanctioned and the resolution was published in the official gazette. What happened, at this time in the nineties, [was that] prison civil servants were [the] target of terrorist attacks by ETA (the terrorist band). In this case, the Spanish Agency, accepted this complaint. Later came cases related to newspaper. But none current online newspaper [but] especially news related to old, written newspaper that were digitized. And that paper, from thirty/forty years ago, now everyone can read them, in this case or many others that happened. For example, this one, La Vanguardia, main Spanish Catalan newspaper, published, in 1989, news related to a man who killed his son pressing a pillow against his face, sleeping, in October [19]87. He was acquitted for this crime in the trial because the court considered paranoid schizophrenia. But the newspaper never published anything about that. Thirty years later, every time he accessed the Internet, he found this information, and that affected his illness. In this case, like all the others related to the newspaper, once more the Spanish Agency urged Google to take these measures to remove data from the index, avoid future access, but related to the newspaper these digitized news, the Spanish Agency considered that not only there is a law, even there is a constitutional right - the right of freedom of speech - that prevailed. And that means that the Spanish agency has never obliged to remove or to erase archives from the newspaper. What the Spanish agency said to the newspaper, in these cases, is a recommendation to consider individual circumstances to avoid the indexing by the search engines. That means using tools like robot.txt.

We could talk about very much cases related to newspapers, not only old news like this one: [19]91, a crime, someone is on news on the El Pais, main newspaper. There is news informing about a crime—a plastic surgeon who finally was acquitted. But never the newspaper informed about this acquittal. There are many cases [which] maybe we could talk later about. But I will finish this landscape about these cases with the one that was launched to the European Court of Justice, with this preliminary ruling. The case of the European Court judgment. A strange case. The national Spanish court could have chosen any other—it has 150 cases to choose. It chose just this one. Once more La Vanguardia published information, not news, just public information. A public body, from the Social Security, obliged or ordered the newspaper to publish an administrative resolution related to an action on real estate caused by a freezing order derived from debts to the social security. That means that this was not news of public interest more than after this first dissemination, but not for the future.

I’m sure you are questioning yourself about the grounds of the Spanish Agency to adopt this position. For me, I think it is very easy to summarize these grounds because all of them have been accepted—mainly all them—have been accepted by the European Court of Justice. All of them can be found inside the European Court of Justice. That means that the Spanish Agency, like the European Court judgment, establish that the European law was applicable—is applicable—to the search engines with advertising office in a member state, that the search engines process data, are [a] controller, have direct responsibility, independent of the webmasters, and that it is possible to react against this personal information using the right to object or the right to erase. That there are limits, of course, freedom of speech and information related to public persons or news of public interest – this is the limit. All of this has been established in the judgment and was in the Spanish resolutions.

Especially, the main ground of the Spanish agency was better explained maybe in the European Court of Justice. That means that for the European Court of Justice and for Spain, the search engines are not [the] subject of fundamental rights. That means they have legitimation for processing information but this legitimation just is an economic interest. They have an economic interest; they are not [the] subject of freedom of speech. They are not media. And that means that in the conflict between data protection and the search engines’ activity, legitimated by the economic interest, the first one prevails. This is in the core of the European court judgment and it was in the core of the Spanish resolutions. Differences: just one. The European court goes further than the Spanish agency, who always resolved case by case, taking into account individual, personal circumstances in any case. That means more or less accepting just the right to object more than the right to erase. The European Court judgment had said no: the right to object is a tool, is a way, but the right to erase too. And why? Because [it] has well explained that the passage of time changed the meaning of the information—the passage of time affected to the quality principal, because information becomes inaccurate, excessive, inappropriate, or obsolete.

I will use my last five minutes sharing some additional thoughts. Victory of the judgment has many owners; but I have to share with you that the Spanish resolutions, that the Spanish agency had not allies in this struggle—any allies. That is the truth. That means that internet users were not allies. When I say internet users, I am relating to the evangelists of the net, of the web, of the internet - activists [and] organizations who think that the internet is a way for freedom of speech. Of course there were allies - maybe the data subjects, the victims this dissemination of information, who complained to the agency. DPAs, data protection authorities, and especially the Article 29 Working Party were not allies. National DPAs, all the DPAs around Europe, were in different way and in fact, Article 29 in its opinion in 2008 on search engines last used three lines, in a footnote, talking about special national legislations for relating to the Spanish case. They were not allies. Some national judges, it’s true, that react in the same way, not the Spanish judges which launch into the European court, a preliminary ruling. And mass media were not allies. I have to make a difference: mass media affected by these resolutions, never accepted in the first years this kind of resolution. They didn't apply the Spanish Agency resolutions, but it’s true that they broadly disseminated the topic. It has a big impact like information — the right to be forgotten.

That has changed. I can share with you that for example, last year, El Pais, main Spanish newspaper, adopted a new style book. In this new style book, it specifically states that it recognizes the right to be forgotten. That means accept[ing] explicitly delisting news, old news, more than fifteen years old news, never news related to sexual abuse judgments nor accepting erasure of archives of course and accepting notice for updating news. This is the way in which the Spanish Agency has many times recommended newspapers to react. And of course Google was not an ally. It always appealed all the Spanish resolutions and in which way with grounds. It is easy to find these grounds. You have just to go to the opinion of the Advocate General in 2013 to find all of them and even more—the Advocate General was the best lawyer Google could find. It is true that the Advocate General accepted that the European law was applicable to the search engines and that they process data—they were controller- but he makes the difference between responsibility of the webmasters and not responsibility for the search engines. The problem was how it considered the right to be forgotten. For the Advocate General the main difference with the European Court judgement [was] the right to be forgotten. The intention of someone to delete personal information, who never authorized to be published was just a subjective preference—this is the word, a subjective preference. He doesn’t consider it like a human right, a fundamental right, even he said a terrible expression that that Article 8 of the Charter of Fundamental Rights just repeats what the Directive 95[/46] established, and make a big difference with the European Court, which really founded all its judgment on the consideration that the right to be forgotten considered like this is inside of the right of the personal information right considered like a fundamental right like Article 8 of the Charter established.

And one second, or one minute, just one second to tell, that I think this judgment in this case, which started with other judgments of the European court, is in some ways a new and significant political jurisprudence, started with the case Snowden and with other, many other cases related to it, data retention cases and others.