First Application of Google Spain by a National Court in Europe: the Right to be Forgotten Gets Reduced in the Netherlands

Recently, a European national court applied for the first time the Google Spain ruling of the European Court of Justice (“ECJ”). The Court of Amsterdam dealt with one of the “right to be forgotten” requests that Google refused to comply with by rejecting the claims of the plaintiff and reinforcing the role of freedom of speech. In particular, the Dutch Court narrowed down the ECJ’s test by stating that the Google Spain ruling “does not intend to protect individuals against all negative communications on the Internet, but only against ‘being pursued’ for a long time by ‘irrelevant’, ‘excessive’ or ‘unnecessarily defamatory’ expressions.”

In the case before the Court of Amsterdam, the owner of an escort agency wanted to have links to online publications reporting on a crime he had committed removed from Google search engine. Google refused to comply fully with this request. Therefore, the complainant brought suit against Google to have all the search results referring to his conviction removed.

In handing down its decision, the Court of Amsterdam provided a more balanced view than the ECJ and did not imply that privacy should prevail over freedom of speech and information. The Court stressed that a person convicted for a serious crime will hardly meet the criteria that the communication is (1) irrelevant, (2) excessive, and (3) unnecessarily defamatory.  Actually, the Court argued that the conviction for a serious crime, and the negative publicity as a consequence thereof, in general provide information about an individual that will remain relevant. The criteria provided by the Court may be met only in very exceptional circumstances, “for instance when the offense committed is brought up again without a clear reason, apparently for no other purpose than to damage the individual involved, if reporting is not factual but rather a ‘slanging-match’.”

A summary in English of the judgment is available here.

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