CJEU is asked to rule on the ‘Right to be Forgotten’ again

The Italian Supreme Court recently asked the CJEU for a preliminary ruling on two questions regarding the ‘right to be forgotten’.

[Disclaimer: this information is loosely translated from official documents published by the Dutch Ministry of Foreign Affairs. The original request can be found here [it]. The CJEU’s documents folder (still empty at the time of writing) can be found here.]

Facts & Procedure (Case C-398/15 – Manni)

The original plaintiff (Salvatore Manni)’s business had gone bankrupt in 1992. This was added to a public Company Register, managed by the defendant (Camera di commercio di Lecce). Plaintiff argued he (his business of selling houses in particular) suffers damages and requested defendant to anonymise his name or restrict access to the register. Defendant stated that the ‘Companies Register’ is a public database with the primary function of informing (on request) about relevant information of companies. The case escalated all the way to the Italian Supreme Court (Corte Suprema di Cassazione), which referred to questions to the CJEU.

Questions referred

The Italian Court essentially wonders whether information legally consigned to (and made public by) the defendant, can be erased, anonymised or access-restricted after a certain time. The Court does point out the importance of the public Register (for legal certainty). Referring to the Google Spain Case (C-131/12), the Court asks not whether the information should be erased from the Register, but whether limits should be put as to the (further) use of this public information by third parties.

  1. Does Article 6(1)(e) of the Data Protection Directive supersede the making public through the company register as commended by Directive 68/151/EEG and corresponding national legislation, to the extent that the latter requires that anyone should have have access to the personal data in the register without restrictions?
  2. Does Article 3 of Directive 68/151/EEG allow, in contrast with the rule that the Company Register saves public information for an indeterminate time and can be consulted by anyone, the information to be made no longer ‘public’, though still available to a specific group, and this to be decided on a case-by-case basis by the Register’s manager?

Relevance

The underlying facts in this ‘Manni’ Case, are strikingly similar to the ones in the Google Spain Case. Instead of focusing on the third-party, however, the CJEU is now asked to evaluate the obligations of the original publisher. In Google Spain, it was already decided (by the national DPA) that the original publication could not be touched before even reaching the CJEU. In the Manni Case, the original source also has a legal obligation to publish. Yet, it is not asked to remove personal data from the source altogether. Only whether the source can be asked to make it less accessible. This raises very interesting questions – left unanswered in Google Spain – as to the obligations on the shoulders of the original publishers and different degrees of publicity.

To be continued…!

The Right to be Forgotten – It’s about time, or is it?

[Brief summary of my presentation at the CPDP 2014 panel on “Timing the Right to be Forgotten”. Slides: See Below]

The panel took a really refreshing perspective on the Right to be Forgotten debate. So I was glad to take this opportunity to look more closely at what role ‘time’ actually plays in the legal framework relevant to the so-called ‘Right to be Forgotten’.

In short, the presentation aimed to identify some of the relevant legislations and case-law, with a particular focus on the general right to privacy and the data protection framework.

Terminlogical Issue – Over the past few years, the so-called ‘Right to be Forgotten’ seems to have been used as some sort of umbrella term to refer to different situations and different legal regimes (general right to privacy, right to personal portrayal, data protection, defamation, etc).

General Right to Privacy – When looked at in the context of the general right to privacy (8 ECHR), it is usually applied to shield individuals from being confronted with certain aspects of their past in a disproportionate, unfair or unreasonable way (classic example: ex-convict who is confronted with his/her past in the media, years after the facts). Because it is primarily invoked in situations where an individual’s personal life is publicly exposed, usually by the media, a careful balancing exercise with other fundamental rights will be imperative. One of the key criteria in making this balance will often be to look at how much time has passed. In the Österreichischer Rundfunk v Austria Case, for example, the ECtHR specified that the lapse of time since a conviction and release constitutes an important element in weighing an individual’s privacy interests over the public’s interest in publication. But, in another case, concerning the publication of a book by the private doctor of former French President Mitterand, the Court held that the lapse of time was an argument in favour of the public’s interests over the privacy and medical confidentiality protections of the ex-President.

Data Protection Law – When based on the data protection framework, the right to be forgotten – or rather right to erasure – seems to be more mechanical and straight-forward. At least in theory. Under the current Directive, the right can be invoked when the data processing “does not comply with the provisions of the Directive, in particular because of the incomplete or inaccurate nature of the data” (art.12). In other words, it looks like the data subject could invoke his/her right to erasure when the controller fails to fulfil its obligations or ignores data subjects’ rights. Keeping mind the concept of ‘Time’, three of the most relevant elements, probably are (1) the purpose specification and use limitation principle, (2) the need for a legitimate ground and (3) the data subject’s right to object.

The purpose specification principle actually constitutes some sort of benchmark against which the processing of personal data will be assessed over time. Besides having to be be specific and explicit, the purpose also has to be legitimate. It goes without saying that the legitimacy of the purpose of processing can evolve over time, depending on a variety of factors. On top of that, over time the personal data might become unnecessary, irrelevant or inadequate to achieve the original (or a compatible) purpose (for more information, check the Article 29WP Opinion 2/2013 on Purpose Limitation).

Secondly, the processing activities will permanently have to be tested against the legitimacy grounds in article 7 of the Directive. This is particularly relevant when the processing is based on the last legitimacy ground, which requires a careful balance to be made between all rights and interests at stake. These might, of course, evolve over time as well.

Thirdly, in principle the right to erasure can also be invoked when the data subject has successfully exercised his/her right to object. In order to exercise one’s right to object, it is necessary to put forward compelling and legitimate grounds (relating to one’s particular situation). It goes without saying that these grounds can include a variety of factors, among which time is one.

In the currently still pending Google Spain Case before the Court of Justice of the EU, for example, one of the primary arguments of the original plaintiff was the passing of time.The  National Court  explained that today, it is possible to create very detailed personal profiles in just a couple of clicks, with information that used to be difficult to find. The lack of territorial and temporal limitations to the dissemination of information constitutes a danger to the protection of personal data. The Court further specified that originally lawful and accurate personal data may become outdated overtime in the face of new events. Some of this information might actually generate social/professional/personal harm to the individual.

Finally, a few words about the draft Data Protection Regulation.  Article 17 on the Right to be Forgotten and to Erasure – already rebranded to the pre-existing right to erasure – specifically aims to give (back) some control to data subjects over their data. Without wanting to go into detail on this provision (which does not add that much to the existing regime, but rather emphasises existing rights and obligations), it is worth highlighting that the article does refer to the concept of ‘Time’ in paragraph 7. This provision stipulates that the controller should “implement mechanisms to ensure that the time limits established for the erasure of personal data […] are observed. The Regulation also requires these time limits are to be specified in the information provided to data subjects (art.14(1)(c).

Concluding. First of all, technology makes it ever more more easy to store and find old information. Just think of the digitisation of old archives, facial recognition, geo-tagging, etc. This trend evidently upsets an increasing amount of individuals. Depending on the relevant facts in each case, a number of legal frameworks might be used to request certain information to be removed. The general right to privacy seems to be particularly used in situations where private information is made public (again) by the media. From ECtHR (and national) case-law it can be deduced that the time-factor can either play in favour of removing the information (when deemed irrelevant, see Österreichischer Rundfunk v Austria Case) or in favour of keeping the information available (when entered in the public domain or when the information is of particular relevance in light of current events, see Aleksey Ovchinnikov v. Russia and Editions Plon v. France). In any case, it seems that from all legal frameworks that might be applicable, data protection law in particular constitutes an increasingly attractive route to take. Not only does it have a broad scope of application, but unlike most other regimes, it does not require falsehood, malicious intent or even widespread publicity

Regardless of what legal regime is used, it seems that in virtually all of these cases, a balance of interests and rights will have to be made. And in quite a few situations time will be a relevant factor to take into account. To give yet another recent example, it is worth referring to the Advocate General’s opinion in the DRI & Seitlinger Case before the Court of Justice (C‑293/12; C‑594/12), released just last month. In this Opinion, the AG explicitly claimed that the Data Retention Directive is incompatible with the Charter of Fundamental Rights. One of the reasons he put forward was that the Directive does not respect the principle of proportionality, in requiring data retention for up to two years. Although the Directive’s ultimate objective is perfectly legitimate, the AG argued, there is no justification for extending the data retention period anything beyond one year.

So, in short, it seems that the passing of time can be used to argue both ways – for or against removal. The importance of ‘time’ in determining the merits of removing information will be different in each individual case, but should not be overestimated either. Eventually, time will just be another factor in assessing the balance of rights and interests.

According to the Advocate General, Mr Cruz Villalón, the Data Retention Directive is incompatible with the Charter of Fundamental Rights

“In his Opinion delivered today, Advocate General Pedro Cruz Villalón, takes the view that the Data Retention Directive1 is as a whole incompatible with the requirement, laid down by the Charter of Fundamental Rights of the European Union, that any limitation on the exercise of a fundamental right must be provided for by law.”

Press Release

Privacy Protection for Minors…?

There seems to be general consensus in many EU jurisdictions on the fact that minors should benefit from a stronger protection of their privacy and personal data. The European Commission’s proposal for a new Data Protection Regulation expressly states that the processing of personal data of a child below the age of 13 years shall only be lawful if and to the extent that consent is given or authorised by the child’s parent or custodian (art.8). In one its recitals, the proposal mentions that minors deserve extra protection because they may be less aware of risks, consequences, safeguards and their rights. The proposed Regulation also provides extra protection to children in specific provisions relating to transparency (art.11, recital 46), the right to erasure (art. 17, recital 53), data protection impact assessments (art.33) and codes of conduct (art. 38).

One of the main issues regarding personal data protection of minors seems to be at what age they can be expected to give a valid consent. The law is unclear about this and practices vary in different jurisdictions. Many European jurisdictions seem to draw a vague line around the age of 14. Nevertheless, potential data controllers have an extra duty of care when dealing with minors. In Germany, for example, professionals such as doctors, social workers or teachers have such Fürsorgepflicht when assessing the consent of minors from 12 upwards. In practice this means that the minor’s consent is a priori valid, but the data controller must make a professional judgement and consult the parents or even refuse consent if deemed appropriate. Failure to do so might result in a breach of their duty. The French Data Protection Authority (DPA) has emphasised the importance of involving parents, and expressly stated that written parental consent is required for the collection of personal data in a school environment (en milieu scolaire). Both Germany and France have also stressed that minors should not be consulted with regard to personal data that does not relate to them (but, for example, to their parents or siblings). The Belgian Privacy Commission stated that extra care is required for minors that have not reached ‘maturity’ yet, but leaves this concept deliberately vague. Although the Belgian Privacy Act does not explicitly mention a specific regime for minors, its provisions are flexible enough to make an appropriate balance depending on the context and actors at stake. Put briefly, according to the Belgian DPA specific parental consent will be required when the processing relates to sensitive data (e.g. health information); when the child has not reached maturity yet; when the purpose is not in the direct interest of the child (e.g. direct marketing); or when the data is intended for publication. The Portuguese DPA emphasised that although children over 14 can give a valid consent (even from the age of 12 in trivial matters), it will generally be required that their parents are at least consulted. In Spain, the data protection legislation explicitly states that personal data of over 14 year olds may be processed with their consent, except ‘in those cases where the law requires the assistance of parents or guardians in the provision of such data’. The general rule of thumb in Denmark seems to apply the age of legal competency (15) to data protection as well. The DPA, however, has stressed that this is merely a rule of thumb and that all relevant elements in each particular situation should be taken into account. In Sweden there is a similar guideline (age of 14-15, exceptionally 13) that remains subject to context-specific elements and the minor’s level of maturity. The European NGO Alliance for Child Safety Online (eNacso), finally, has stated that parental consent is required whenever a minor cannot be expected to understand the data transaction. The Alliance continues to say that service provides cannot deduct general consent from the fact that their service is paid/contracted for by the minor’s parents.

Besides issues related to consent, it has been stressed that the transparency requirement must be taken extra care of when dealing with minors. The data controller will have to make its information very accessible, simple and direct. Data controllers in Spain are even legally bound to provide this information in easily understandable language, with express indication of the minor’s rights.  In Sweden, data controllers will always have to inform the parents of minors, even if they are deemed to be capable of giving a valid consent. According to the Belgian Privacy Commission, minors should retain full control over their personal data and be encouraged to inform their parents of their online activities.

Put briefly, when processing personal data of minors, data controllers will always have to take extra care. Although age would constitute a straightforward and easy criterion to decide on whether or not consent is an adequate legitimacy ground, other criteria are deemed to be more important (e.g. level of maturity). Data controllers will have an important responsibility and duty of care when dealing with minors. Each situation of data processing will have to be assessed independently, taking into account the specific context, identity of actors and type of personal data (processing). As a general rule, data controllers are advised to put extra efforts into all their legal obligations (supra). More specifically, provide short and understandable information, ask parental consent and clearly define the purpose and scope of processing.