By Miquel Peguera on October 14, 2014 at 1:29 am
The CJEU judgment on the right to be forgotten, Google Spain v. Mario Costeja, hit the search engine on an unexpected front – damages. On the basis of the CJEU’s judgment, the Barcelona Court of Appeals ordered Google to pay damages to an individual who, like Costeja, sought the removal of links to some old, damaging information from the search results.
In 1981, the plaintiff of this case was criminally charged for violating "public health" regulations. He was finally convicted by the Spanish Supreme Court in 1990. Nine years later, he was granted pardon. The Royal Decree granting this pardon was subsequently published in the Boletín Oficial del Estado (Official Gazette), as is required by the law. When typing plaintiff’s name in Google, links to the Official Gazette would appear, thus revealing that this person had committed a crime about thirty years ago.
In 2009, he filed a complaint against Google Spain SL before the Spanish Data Protection Authority (DPA). The DPA ordered Google Spain SL to adopt the measures necessary to withdraw the data from its index and to prevent access to the data in the future. Like in many other similar cases – including the Costeja’s case – Google appealed this decision to the Audiencia Nacional, where it is still pending.
On March 22, 2011, long before the CJEU rendered the Google Spain ruling, the plaintiff brought also a civil lawsuit asking for damages. This is the case now decided by the Barcelona Court of Appeals. The complaint asked for the removal of the links, and for damages. However, at an initial stage of the proceedings, the plaintiff acknowledged that the contested links had already been removed, and thus only the claim for damages survived in the lawsuit.
Initially, the first instance court rejected the complaint, and the plaintiff appealed. On July 17, 2014 (albeit only recently reported), the court of appeals handed down its ruling granting the plaintiff’s claim and awarding damages, although dramatically reducing the exaggerated amount demanded. The court relied heavily on the CJEU Google Spain judgment and held that Google infringed the subject’s data protection rights by failing to remove the links when requested to do so. The plaintiff was awarded moral damages for the period of time the links were accessible.
The Data Protection Directive (95/46) orders Member States to “provide that any person who has suffered damage as a result of an unlawful processing operation or of any act incompatible with the national provisions adopted pursuant to this Directive is entitled to receive compensation from the controller for the damage suffered.” This provision was transposed into art. 19 of the Spanish Data Protection Law, which is the basis for the complaint.
Google successfully claimed that the safe harbor for search engines (art. 17 of the Law on Information Society Services) applied to it. However, according to the court, Google lost the safe harbor when it obtained the actual knowledge of the offending links, at the time it knew about the DPA decision. While this claim for damages is independent from any administrative proceeding, the court came to the conclusion that Google was liable from the moment it was notified about the DPA decision, and up to the moment the links were removed – a time span of about ten months.
As noted, the defendant in this case was not Google Inc., but its Spanish subsidiary, Google Spain SL – along with some other entities. The court rejected the defendant’s contention that because the search engine is operated by Google Inc. – a different entity – Google Spain SL cannot be held liable.
The text of the ruling, which has been appealed before the Supreme Court, is available here (in Spanish). Please note that the names of individual parties are anonymized.
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