The Judgment of the Court of Justice and the Right to be forgotten on the Internet The Judgment of the Court of Justice delivered in connection with the case brought before the Spanish Data Protection Authority against La Vanguardia Ediciones, S.L (a newspaper with large circulation in Spain), Google Spain and Google Inc., which established the right to be forgotten on the Internet, was published on 13 May 2014. In brief, in 1998, La Vanguardia published an announcement for a real estate auction connected with attachment proceedings for the recovery of social security debts. It so happens that, after so many years, a search in the Google search engine concerning that Spanish citizen, continues to link to the mentioned page of the Spanish newspaper. In this connection, the Spanish citizen lodged a complaint to the Spanish Data Protection Authority requesting La Vanguardia to remove the page in question, or alter it in such a way that his name no longer appeared in it, and requesting Google to refrain from indexing the page in question, causing the same to cease to be included in search results. The Spanish Data Protection Authority did not uphold the demands of the Spanish citizen against the La Vanguardia, as it considered that the latter had published the information lawfully 16 years earlier but, indeed, it considered that the European data protection legislation protect the Spanish citizen against the information currently provided by search engines and, to that extent, it upheld the requests made against the Google companies. As it disagreed with the decision of the Spanish Data Protection Authority, Google resorted to the Spanish courts, which, in turn, referred a number of questions to the Court of Justice. Requested to express its opinion, the Court of Justice considered that Directive 95/46/EC of the European Parliament and of the Council (on the protection of individuals with regard to the processing of personal data and on the free movement of such data) should be interpreted as meaning that, on the one hand, the activity of a search engine which consists in finding information published or placed on the Internet by third parties, indexing it automatically, storing it temporarily and, finally, making it available to internet users according to a particular order of preference, must be classified as ‘processing of personal data’ within the meaning of Article 2(b) when that information contains personal data, and that, on the other hand, the operator of such search engine should be considered ‘responsible’ for the processing, within the meaning of said Article 2(d). According to the Court of Justice, article 4(1)(a) of the Directive must be interpreted as meaning that the processing is carried out in the context of the activities of an establishment of the controller on the territory of the Member State, within the meaning of this provision, when the operator of a search engine establishes in a Member State a branch or subsidiary which is intended to promote and sell advertising space offered by WWW.CUATRECASAS.COM NEWSLETTER I INTELLECTUAL P ROPERTY, MEDIA AND IT 3/8 that engine, the activity of which is oriented towards the inhabitants of that Member State. Moreover, Articles 12(b) and 14, first paragraph, (a) of the Directive should be interpreted as meaning that, in order to comply with the rights laid down in those provisions, and in so far as the conditions laid down by those provisions are in fact satisfied, the operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful. Finally, the Court of Justice considered that Articles 12(b) and 14, first paragraph, (a) of the Directive, should be interpreted as meaning that, when appraising the conditions for the application of those provisions, it should in particular be examined whether the data subject has a right that the information in question relating to him personally should no longer be linked to his name by a list of results displayed following a search made on the basis of his name, without it being necessary in order to find such a right that the inclusion of the information in question in that list causes prejudice to the data subject. Inasmuch as the data subject may, in the light of his fundamental rights under Articles 7 and 8 of the Charter, request that the information in question no longer be made available to the general public on account of its inclusion in such a list of results, those rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in having access to that information upon a search relating to the data subject’s name. However, that would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of its inclusion in the list of results, access to the information in question. II LEGISLATION Decree No. 4971/2014. D.R. (Portuguese official gazette) No. 69, Series II of 2014-04-08 Amending the National Catalogue of Varieties. Decree-Law No. 62/2014. D.R. (Portuguese official gazette) No. 80, Series I of 2014-04-24 Transposing Commission Directive No. 2013/10/EU of 19 March 2013, amending Council Directive 75/324/EEC of 20 May 1975, on the approximation of the laws of the Member States relating to aerosol dispensers in order to adapt its labelling provisions to Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December de 2008, on the classification, labelling and packaging of substances and mixtures, amending for the first time Decree-Law No 61/2010, of 9 June.WWW.CUATRECASAS.COM NEWSLETTER I INTELLECTUAL P ROPERTY, MEDIA AND IT 4/8 Commission Regulation (EU) No 426/2014 of 25 April 2014. OJEU L 125/55 of 2014-04-26 Amending Annex II to Regulation (EC) No 110/2008 of the European Parliament and of the Council on the definition, description, presentation, labelling and the protection of geographical indications of spirit drinks. Law No 23/2014. D.R. (Portuguese official gazette) No 81, Series I of 2014-04- 28 Regulating the database and the personal data recorded subject to computer processing in connection with the legal framework of the pursuit of the private security activity, enacted by Law No 34/2013, of 16 May. Law No 28/2014. D.R. (Portuguese official gazette) No 95, Series I of 2014-05- 19 Amending for the first time Law No 55/2012, of 6 September, laying down the principles of State action for the promotion, development and protection of the cinema art and of cinematographic and audiovisual activities, and Decree-Law No 9/2013, of 24 January, governing the assessment, collection, payment and supervision of the rates set out in Law No 55/2012, of 6 September. Directive 2014/61/EU of the European Parliament and of the Council, of 15 May 2014. OJEU L 155/1 of 2014-05-23 On measures to reduce the cost of deploying high-speed electronic communications networks. Regulation (EU) No 542/2014 of the European Parliament and of the Council, of 15 May 2014. OJEU L 163/1 of 2014-05-29 Amending Regulation (EU) No 1215/2012, as regards the rules to be applied with respect to the Unified Patent Court and the Benelux Court of Justice. Rectification Statement No 622/2014. D.R. (Portuguese official gazette) No 116, Series II of 2014-06-19 Rectifying resolution No 1123/2014, published in Diário da República, 2 nd series, No 99, of 23 May 2014 – updating the schedule of fees for industrial property.WWW.CUATRECASAS.COM NEWSLETTER I INTELLECTUAL P ROPERTY, MEDIA AND IT 5/8 III CASE LAW Judgment of the Court of Justice (Eighth Chamber) of 13 March 2014 (Case C- 52/13). OJEU C135/13 of 2014-05-05 - National regulation providing that misleading advertising and unlawful comparative advertising are two separate unlawful acts - Directive 2006/114/EC of the European Parliament and of the Council, of 12 December 2006, concerning misleading advertising, should be interpreted, with regard to the protection of traders, as referring to misleading advertising and unlawful comparative advertising as two independent infringements and to the effect that, in order to prohibit and penalise misleading advertising, it is not necessary that the latter at the same time should constitute unlawful comparative advertising. Judgment of the Court of Justice (Second Chamber) of 3 April 2014 (Case C- 319/13). OJEU C 159/10 of 2014-05-26 - Dealer’s obligation to label the television and to obtain a label subsequently from the date on which the Delegated Regulation (EU) No 1062/2010 became applicable – Article 4(a) of Commission Delegated Regulation (EU) No 1062/2010 of 28 September 2010, supplementing Directive 2010/30/EU of the European Parliament and of the Council with regard to energy labelling of televisions, must be interpreted as meaning that the obligation for dealers to ensure that each television, at the point of sale, bears a label provided by suppliers, in accordance with Article 3(1) of the said Regulation, applies only to televisions placed on the market, that is, dispatched for the first time by the manufacturer with a view to their distribution in the sales chain, from 30 November 2011. Judgment of the Court of Appeal of Porto (Case No 3607/10.4TJVNF of the 5 th Civil Juízo of Vila Nova de Famalicão. Boletim da Propriedade Industrial No 2014/04/04 Contrary to the decision taken in the first instance, the Court of Appeal of Porto considered that, after the coming into force of the Industrial Property Code in 2003, there cannot be the slightest doubt that unfair competition is enough to apply for the cancellation of the trademark registration, which application can be submitted even by the person using the trademark without the latter being registered.WWW.CUATRECASAS.COM NEWSLETTER I INTELLECTUAL P ROPERTY, MEDIA AND IT 6/8 Judgment of the Court of Justice (Grand Chamber) of 8 April 2014 (Joined Cases C-293/12 and C-594/12). OJEU C 175/6 of 2014-06-10 - Publicly available electronic communications services or public communications networks services. Retention of data generated or processed in connection with the provision of such services - Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC is invalid. Judgment of the Court of Justice (Four Section) of 10 April 2014 (Case C- 435/12). OJEU C 175/07 of 2014-06-10 - Reproduction for private use. Lawful nature of the origin of the copy. EU law, in particular Article 5(2)(b) of Directive 2001/29 of the European Parliament and of the Council of 22 May 2001, on the harmonisation of certain aspects of copyright and related rights in the information society, read in conjunction with number 5 of the said article, is to be interpreted as precluding national legislation, such as that at issue in the main proceedings, which does not distinguish whether the source from which a reproduction for private use is made is lawful or unlawful. Directive 2004/48/EC of the European Parliament and of the Council, of 29 April 2004, on the enforcement of intellectual property rights, must be interpreted as not applying to proceedings, such as those in the main proceedings, in which those liable for payment of the fair compensation bring an action before the referring court for a ruling against the body responsible for collecting that remuneration and distributing it to copyright holders, which defend that action. Judgment of the Court of Justice (Second Chamber) of 9 April 2014 (Case C- 583/12). OJEU C 175/9 of 2014-06-10 - Powers of the customs authority to establish the infringement of an intellectual property right – Article 13(1) of Council Regulation (EC) No 1383/2003 of 22 July 2003, concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights, must be interpreted as not precluding the customs authorities, in the absence of any initiative by the holder of the intellectual property right, from initiating and conducting the proceedings referred to in that provision themselves, provided that the relevant decision taken by those authorities may be subject to appeal ensuring that the rights derived by individuals from EU law and, in particular, from that Regulation are safeguarded.WWW.CUATRECASAS.COM NEWSLETTER I INTELLECTUAL P ROPERTY, MEDIA AND IT 7/8 Judgment of the Court of Justice (Fourth Chamber) of 10 April 2014 (Case C- 609/12). OJEU C 175/10 of 2014-06-10 - Nutrition and health claims made on food. Labelling and presentation of that food. Regulation (EC) No 1924/2006 of the European Parliament and of the Council, of 20 December 2006, on nutrition and health claims made on food, as amended by Commission Regulation (EU) No 116/2010 of 9 February 2010, must be interpreted as meaning that the duties to provide information contained in Article 10(2) of this Regulation were already in force in 2010, in respect of health claims not prohibited pursuant to Article 10(1) of that Regulation, read in conjunction with Article 28(5) and (6) of the same Regulation. IV RESOLUTIONS, RECOMMENDATIONS, OPINIONS AND OTHERS Opinion of the Committee of the Regions. OJEU C 114/79 de 2014-04-15 Analysing the proposal for a Directive on e-invoicing and end-to-end e-procurement. The Committee welcomes the option for contracting authorities and entities to continue to accept invoices in other standard formats, as well as paper invoices, unless otherwise provided in national legislation, even after a common EU standard has been developed. It is also noted that the proposed European standard should not hinder or make the work of contracting authorities and entities and of their suppliers more difficult and focus is placed on the fact that it would be very expensive if contracting authorities and entities were required to have the capacity to accept e-invoices in all technical formats. The Committee therefore suggests that the proposal for a Directive should clarify which requirements are imposed on contracting authorities and entities. Commission Communication. OJEU C 115/1 of 2014-04-15 Indicating the entities qualified by Member States to bring injunctions, in the matter of consumer protection, pursuant to Article 2 of Directive 2009/22/EC of the European Parliament and of the Council. Executive Summary of the European Data Protection Supervisor. OJEU C 116/4 of 2014-04-16 Concerning the Communication from the Commission to the European Parliament and the Council on «Rebuilding trust in EU-US Data Flows » and the Communication from the Commission to the European Parliament and the Council on the functioning of the “Safe Harbour” from the perspective of the EU citizens and companies established in the EU.WWW.CUATRECASAS.COM NEWSLETTER I INTELLECTUAL P ROPERTY, MEDIA AND IT 8/8 Commission Decision of 5 June 2014. OJEU L 167/57 of 2014-06-06 Laying down the functions and responsibilities of the European Commission in relation to data protection requirement whilst processing personal data in the European e-Justice Portal. Opinion of the European Economic and Social Committee. OJEU C 177/64 of 2014-06-11 Concerning the ‘New Measures on the EU single market for telecoms’ covering the following two documents: Proposal for a Regulation of the European Parliament and of the Council laying down measures concerning the European single market for electronic communications and to achieve a Connected Continent, and amending Directives 2002/20/EC, 2002/21/EC and 2002/22/EC and Regulations (EC) No 1211/2009 and (EU) No 531/2012, and the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the Telecommunications Single Market. CONTACT CUATRECASAS, GONÇALVES PEREIRA & ASSOCIADOS, RL Sociedade de Advogados de Responsabilidade Limitada LISBOA Praça Marquês de Pombal, 2 (e 1-8º) I 1250-160 Lisboa I Portugal Tel. 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