In a December 2014 decision, a French judge ruling in injunctive proceedings gave a new and interesting illustration of how national judges may use the ECJ’s Costeja v. Google case, as well as the related guidelines adopted by the Article 29 Working Party (“WP29?),to grant individuals’ requests to remove from search results links to web pages containing information infringing their privacy.
On December 19, 2014, the Paris Civil Court ordered Google Inc. to remove from its search results two links to press articles relating the plaintiff’s past fraud conviction.The Court performed a balancing test between the data subject’s right to privacy and the public’s right to have access to information, based on the ECJ’s ruling. The December order followed a first order dated November 24, 2014, rendered in the same case, whereby the French judge exonerated Google France to find only Google Inc. was liable (see here for another blog post on this topic).
In the December order, the French judge found that the plaintiff had paramount and legitimate reasons overriding the right to information, based on the following criteria:
- The articles were published in 2006 regarding plaintiff’s criminal conviction in April 2006;
- The fact that the articles were accessible following a search based on the plaintiff’s name was impacting her job search;
- The conviction dated from more than 8 years ago; and
- The conviction is not mentioned in form No. 3 (bulletin n° 3) of the plaintiff’s criminal record. Form No. 3 includes the most serious convictions (i.e., convictions for crimes and misdemeanors resulting in sentences of two or more years’ imprisonment, along with any current debarments.
Although the court order does not make any reference to the WP29 guidelines, the French judge may have performed this balancing test by using the following criteria identified by the WP29 for the handling of complaints by European data protection authorities:
- Criterion No. 8: “Where there is evidence that the availability of a search result is causing prejudice to the data subject, this would be a strong factor in favour of de-listing“, even though “it is not necessary in order to find such a right that the inclusion of the information in question in the list of results causes prejudice to the data subject” (§ 96 of the ECJ’s ruling).
- Criterion No. 13: Where the data relates to a criminal offense, de-listing is more likely to be granted in respect of search results relating to “relatively minor offences that happened a long time ago“.
It is interesting to note that the de-indexing order only appears to concern the .fr domain, as the related November court order only referred to google.fr. This solution is not consistent with the WP29 guidelines, which consider that “in any case de-listing should also be effective on all relevant domains, including .com“.
This decision is an example of how local judges apply the ECJ’s ruling and the WP29 guidelines. It also indicates that local judges are not applying the WP29 guidelines to the letter. Finally, this decision was rendered, not on the merits, but in injunctive proceedings by a jurisdiction of first instance. More to follow!