Decision contradicts EU advocate general’s previous non-binding guidance.
After years of attempts by Brussels to tighten up Europe’s data privacy rules in the face of US lobbying, in May the European Court of Justice (ECJ) achieved that effect by backing a ‘right to be forgotten’ against Google, in a blow for the search engine and advisers Cleary Gottlieb Steen & Hamilton.
The court in Luxembourg found that in certain circumstances individuals can request that operators remove the links that appear during searches of their name, meaning Google will now need to set up a technical solution to a potential minefield of requests.
A team from Cleary, led by Brussels-based partner Francisco Enrique González-Díaz, represented longstanding client Google, in a case that stemmed from a complaint lodged by Spanish national Mario Costeja González against Google in 2010.
This is the latest Google instruction for Cleary, which in 2012 acted on the search engine’s $12.5bn acquisition of Motorola Mobility, including 17,000 patents, constituting the company’s largest-ever acquisition. The firm also represented Google on multiple other acquisitions, including Wildfire, AdMob, Admeld and ITA Software.
Significantly, the ECJ rejected the submission that Google does not exercise any control over personal data published on the websites of third parties, finding that an internet search operator is a ‘data controller’ and subject to data privacy rules.
Last month’s surprise ruling will have significant implications not only for search engines across Europe, but potentially other publishers of personal information.
The decision is in marked contrast with the conclusion of the European Union’s advocate general Niilo Jääskinen last year and one in-house senior data privacy lawyer commented: ‘Unusually, [the ECJ judgment] ignores the earlier advocate general’s non-binding guidance – which was pro-Google.
‘There is no appeal from this decision because it’s not determinative of the issue before the Spanish court. However, this statement of what the law means now goes back down to the Spanish court to overlay on the facts of the particular case it is hearing. Google could appeal the decision which the Spanish court reaches provided there’s locus for an appeal.’
Former Field Fisher Waterhouse partner Stewart Room, who is currently acting as director of Cyber Security Challenge UK and is set to join PwC Legal in October to head up its cyber and data security business, said: ‘The irony, if there is one, is the EU Commission rolled back its proposals following intense lobbying by the US technology sector. I expect there were some wry smiles on the faces of Brussels’ bureaucrats.’