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Google Spain v. González: Did the Court Forget About Freedom of Expression?

European Journal of Risk Regulation (2014)

13 Pages Posted: 5 Sep 2014  

Stefan Kulk

Utrecht University - Centre for Intellectual Property Law; Utrecht University School of Law (the Netherlands)

Frederik J. Zuiderveen Borgesius

University of Amsterdam - IViR Institute for Information Law (IViR)

Date Written: September 4, 2014

Abstract

In this note we discuss the controversial judgment in Google Spain v. González of the Court of Justice of the European Union (CJEU). Our focus is on the judgment’s implications for freedom of expression. First, the facts of the case and the CJEU’s judgment are summarised. We then argue that the CJEU did not give enough attention to the right to freedom of expression. By seeing a search engine operator as a controller regarding the processing of personal data on third party web pages, the CJEU assigns the operator the delicate task of balancing the fundamental rights at stake. However, such an operator may not be the most appropriate party to balance the rights of all involved parties, in particular in cases where such a balance is hard to strike. Furthermore, it is a departure from human rights doctrine that according to the CJEU privacy and data protection rights override, “as a rule”, the public’s right to receive information. In addition, after the judgement it has become unclear whether search engine operators have a legal basis for indexing websites that contain special categories of data. We also discuss steps taken by Google to comply with the judgment.

Keywords: data protection, privacy, freedom of expression, right to be forgotten, intermediary liability, search engines

Suggested Citation

Kulk, Stefan and Zuiderveen Borgesius, Frederik J., Google Spain v. González: Did the Court Forget About Freedom of Expression? (September 4, 2014). European Journal of Risk Regulation (2014). Available at SSRN: https://ssrn.com/abstract=2491486

Stefan Kulk (Contact Author)

Utrecht University - Centre for Intellectual Property Law ( email )

Janskerkhof 12
Utrecht, 3512 BL
Netherlands

HOME PAGE: http://www.cier.nl

Utrecht University School of Law (the Netherlands) ( email )

3508 TC Utrecht
Utrecht
Netherlands

Frederik J. Zuiderveen Borgesius

University of Amsterdam - IViR Institute for Information Law (IViR) ( email )

Amsterdam
Netherlands

HOME PAGE: http://www.ivir.nl/employee/zuiderveen-borgesius/

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