In Spain, where the milestone May 13, 2014 decision of the ECJ on the “right to be forgotten” in the Google v. Costejo case originated, the Audiencia Nacional revealed on January 23, 2015 that the first 18 cases concerning the right to be forgotten have been decided. One of the decisions, dated December 29, 2014, has been published.
The Audiencia Nacional is a high court, with jurisdiction over all Spanish territory. Its Administrative Chamber exercises judicial review of certain specialized government agencies, including the Spanish Data Protection Agency. The rulings and decisions of the Audiencia Nacional can only be appealed before the Supreme Court of Spain.
According to the court, 14 of the 18 cases have been decided in favor of the data subjects. The decisions are specially relevant as they confirm, under Spanish law, the elements to be analyzed in order to assess when data protection rights must prevail over the public’s right to know, and in general, over the freedom of information. The court has stated that those who exercise the right to be forgotten must:
- attest that the relevant Internet searches are made by using their names and surnames (and not by using particulars of the case);
- provide the list of hits/ links obtained when making said searches; and
- explain how the relevant information affects them and is the result of processing their personal data.
The court has also stated that the rights in conflict must be balanced taking into account: (a) the nature of the information and its sensitivity for the private life of the data subject; (ii) the necessity of making public the personal data of the individual; and (iii) the amount of time elapsed since the information was made public.
It must be noted that, according to the December 29, 2014 Spanish decision, and consistent with the ECJ decision, that for the sake of safeguarding the freedom of information to the maximum extent, it is not necessary to remove the information from the original source, but only from the results of the searches.