Legal Journal

Search Engine Liabilities for Online Reputation Management

SEARCH ENGINE LIABILITIES FOR ONLINE REPUTATION MANAGEMENT AND DECISION OF THE EUROPEAN COURT OF JUSTICE

Sharing personal data has become one of the daily necessities for any individual with the rise and popularisation of social media tools. Individuals are in need of social networking accompanied with disclosure of their personal data and borders of private life and confidentiality of personal information have become vague.

Techno-utopianism ideology¹, which supports the rise of social media tools, has led to transfer and disclosure of sensitive personal information of individuals both in public and private sectors. Soon after, users of the Internet environment may desire the removal of all of these data, which has been formerly shared on social media platforms. On the one hand individuals are more liberated with the developments in terms of technology, but on the other hand a different hazard arises from these developments: area of individual’s privacy and security of personal information becomes more and more public and narrow.

At this point, “the right to be forgotten” regulation is presented by the EU Commission as a solution method for these problems. The most important decision with regards to application of the right to be forgotten and liabilities of search engines, is the Decision No C-132/12 of the European Court of Justice (“ECJ”)².

The Case of Agencia Española de Protección de Datos (Spanish Agency of Data Protection “AEPD”) & Mario Costeja González vs Google Spain & Google International

Spanish Ministry of Labour and Social Security has put up for auction the real estate of lawyer Mario Costeja Gonzales (“MCG”), who has become incapable of paying his debts. Details about the auction are published in the newspaper called La Vanguardia Ediciones. Such announcements are also seen in the results of the Google search engine.

After twelve years of publishing this announcement, MCG applies to AEPD in order to remove the relevant pages from the newspaper and requests the erasure of the announcement from Google search engine. According to the AEPD, MCG’s request does not have a legal force since the announcement was published in the newspaper upon request of Spanish Ministry of Labour and Social Security. In response, MCG files a claim against AEPD, Google Spain and Google International in National High Court and MCG’s claims are found applicable. Consequently, the dispute is sent to ECJ in order to be solved. ECJ has therefore attempted to determine the liabilities of the search engines with regards to results they provide in searches taking into consideration the main purpose and function of search engines.

What are the liabilities of search engines within the scope of reputation management?

ECJ has determined that search engines collect and save personal data in their servers; correct/process such personal data using their own index system and make the data ready to their users based on search terms chosen by the users. According to ECJ, search engines do not take into consideration article 2/a of the Data Protection Directive No. 95/46 and do not determine whether this data is considered as personal data or not; while using and processing personal data. Accordingly, ECJ decided that the service provided by search engines is accepted as processing of personal data according to article 2/b of the Data Protection Directive.

Searches made in search engines by using metatags and keywords lead users to other information about the data subject in addition to actually searched information. In other words, search engines do not only publish data on the Internet but they also lead the users to other processed information via the data and keywords submitted during the search. Therefore, search engines are considered as both “data processor” and “data controller”.

ECJ has further determined some ground rules for search engines to be used in the event of data removal request. Accordingly, when there is a data removal request; data’s:
• Nature and sensitivity,
• Actuality
• Public welfare in its accessibility
• Importance in data subject’s daily life
should be considered and then it should be decided whether the data will be removed or not.

This means that if; (i) the results of search engines are not disclosed in accordance with their sharing/collecting purposes, (ii) data has lost its actuality, (iii) sharing the data does not have a greater value for public welfare and (iv) sharing this data creates material results in the data subject’s life; this data can be removed and/or corrected by the search engines within the scope of reputation management.

Right to be forgotten shall be evaluated together with Personal Rights

The importance of a probable damage, which may be caused by infringing any personal rights, is greater than the profit which search engines make from processing and indexing the data. However, Internet users’ right of access to information is also restricted with removal of the data. For this reason, the balance between personal rights and right to access information should be regarded. Firstly, the effect of data sharing in the search engine to data subjects’ personal life shall be evaluated.

In this context, as it can be seen in ECJ’s decision, even the content which is lawfully published, can be removed because of its sensitivity, negative effect to data subject’s personal life, outdated nature (considering it is based on an event which happened twelve years ago) and the reason that this information does not have a greater value for public welfare.

Therefore, even the lawfully shared content which affects the data subject’s reputation in the community can be removed. It is accepted that the possible threat to the personal rights should be deemed sufficient for removing this content.

Thus, "it takes many good deeds to build a good reputation, and only one bad one to lose it"³. Individuals’ purpose to live a life without any prejudice; desire to leave behind good or bad situations and memories have a big importance in their existence.

It is beyond doubt that the background of ECJ’s decision gives important benefits to the users; as well as causing major problems. Firstly, technical infrastructure/platform shall be prepared regarding this right’s adaptation to our lives.

In this point, we consider that using online reputation management in a legal concept will be an effective tool in order to practice the right to be forgotten.

Av. Derya Doğan

^{1Szeman, Imre. (2007) System Failure: Oil, Futurity, and the Anticipation of Disaster. South Atlantic Quarterly.}

^{2 Judgment of the Court (Grand Chamber) of 13 May 2014. Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González ( erişim: http://curia.europa.eu/juris/liste.jsf?num=C-131/12, 24.08.2015)}

^{3 “It takes many good deeds to build a good reputation, and only one bad one to lose it.” Benjamin Franklin}