The Google Spain-decision of the European Court of Justice is a controversial one. On this blog, Anna Berlee already explained the facts of the case and the implications of the Court’s decision. Julia Powles and Jat Singh from the University of Cambridge have compiled a list of academic commentary on their Cambridge Code website.
Frederik Zuiderveen Borgesius and I put in our two cents as well. We wrote a paper focusing on the decision’s implications on the fundamental right of freedom of expression. In the paper, we argue that the Court did not fully take into account the right to freedom of expression when it decided that search engine operators, under certain conditions, have to remove search results for name searches. In particular the Court’s reasoning that privacy and data protection rights override “as a rule” the public’s right to receive information, is a departure from human rights doctrine developed by the European Court of Human Rights.
Moreover, we argue that by qualifying search engine operators as controllers regarding the processing of personal data on third party web pages, the Court assigns these operators the delicate task of balancing the fundamental rights at stake. Search engine operators, such as Google, may however not be the most appropriate party to balance the rights of all involved parties, in particular in cases where such a balance is hard to strike.
The above is only a brief description and a teaser of the arguments we make in our paper. The full paper will be published in the European Journal of Risk Regulation, but a draft of it is already available at the Social Science Research Network. Go download it!