Case Law, Spain: A and B v Ediciones El Pais, Newspaper archive to be hidden from internet searches but no “re-writing of history” – Hugh Tomlinson QC

On 15 October 2015, the Spanish Supreme Court handed down judgment in the “right to be forgotten” case of  A & B v Ediciones El Pais SL [pdf](in Spanish).

It held that the respondent newspaper, El Pais, should take steps to ensure that archived articles reporting the applicants’ 1980s drug convictions were not indexed by search engines.  However, the right to be forgotten did not require the removal of the articles from the archive itself or their de-indexing from the website’s internal search engine.

Background

The applicants were two individuals who had been convicted of drug offences in the 1980s.  They were both drug addicts and when imprisoned suffered withdrawal symptoms.  The leading Spanish newspaper El Pais reported their arrests, imprisonment and treatment.  Their names and professions were given.

The applicants were sentenced for drug smuggling and imprisoned.  After release they overcome their drug addiction and developed their family and professional lives.

In November 2007 El Pais allowed the general public free access to its digital newspaper library on the website www.elpais.com.  The relevant pages did not contain any code or instruction to block search engines.  When web searches were carried out on the applicants’ names the archived stories from El Pais appeared at or towards the top of Google or Yahoo! Search results.

In 2009 the applicants requested El Pais to stop processing their personal data on its website or to replace their names with initials and to take the necessary technical measures to ensure that these pages were not indexed by search engines.  This request was rejected by the newspaper.

In September 2011 the applicants brought proceedings claiming that El Pais was violating their rights privacy and honour and seeking an order that it cease processing their data.  The applicants were successful before the Court of First Instance and were awarded damages of €7,000 each and costs.

The Court held that the economic interest of El País could not prevail over the privacy and data protection rights of the applicants, who are not public figures and have overcome their addiction problems.

The Court ordered El Pais to enter a “no index” instruction the webpage so that the articles did not appear in the results of search engines when the applicants’ names were entered.  The news stories would remain in the digital archive of El Pais.

The Court of Appeal dismissed El Pais’ appeal but allowed the applicants’ cross-appeal and made an order that the newspaper should not process their names or identifying data at all.  El Pais appealed to the Supreme Court.

Judgment

The Supreme Court pointed out that the editor of a webpage is responsible as a processor for the personal data processed on the web page. They relied on Lindqvist,(Case C-101/01, [25]) and Google Spain v AEPD, (Case C-131/12 [26]).

The Court said that it was necessary to perform a balancing of the rights and legal interests a stake in order to decide whether the processing of personal data for the applicants as a result of the digisation of the El Pais archive was lawful.

It noted that the Court of Human Rights had made it clear that digital newspaper archives fall within the scope of the protection of Article 10 of the ECHR (see Wegrzynowski v Poland, Judgment of 16 July 2013, [59]). But, this is a secondary function of the press and the protection is less intense than in relation to the publication of news.

The applicants were not public figures and the facts in the newspaper articles were not of historical interest.  The events in question had occurred more than 20 years earlier. The general and permanent advertising of their involvement in those events was a disproportionate interference with their honour.

Although the facts in the articles were true, lawful processing not only requires accuracy but the personal data must also be adequate, relevant and not excessive in relation to the purposes for which they are collected or processed (see Data Protection Directive, Art 6(1)(c)).  These conditions were not met in relation to the processing of this data in search engine request against their names that allows indiscriminate access to information more than 20 years after the events occurred and causes damage.

As a result, the refusal by El Pais to prevent the processing of the applicant’s data by search engines was a breach of their data protection rights.  The damage to their rights to honour and privacy was so disproportionate than it was not covered by the exercise of freedom of information involving the digital newspaper library.

The lower courts were right to require El Pais to adopt technical measures (such as using robots.txt or no-index code instructions) for the relevant pages in its digital archive so that it did not appear on an internet search against the applicants’ names.

The lower court had required two other measures.  First, the removal of the applicants’ names from the web page containing the news.  This was disproportionate.  The right to be forgotten cannot be retrospective censorship of properly published information.  The judicial authorities cannot be involved in re-writing history (see Wegrzynowski, [65]).  The integrity of the digital files is protected by Article 10 of the ECHR.

Secondly, the lower court required the adoption of technical measures to prevent the information being indexed by the El Pais internal search engine.  This was also disproportionate.  The internal search engine only assists users to locate information once they are logged onto the website.  They are not comparable to internet search engines.

Comment

This is an interesting decision in which the Spanish Supreme Court sought to strike a careful balance between the freedom of expression and information rights of a newspaper and the reputation and privacy rights of individuals.  The case was brought before Google Spain established that search engines were data controllers but is, from one perspective, a more appropriate way of dealing with the issue: instead of seeking orders against the messenger, the applicants were going to the source of the problem, the newspaper archive.

Although the applicants had been convicted of serious criminal offences, they were not public figures and the convictions had no historical significance.  As a result, their easy availability on an internet search against the applicants’ names was a disproportionate interference with rights to reputation and privacy (or, in a term unfamiliar to English lawyers, their “honour”).

Building on the Google Spain decision the Supreme Court required El Pais to take technical steps to ensure that the news story was not available to someone making an internet search. However, it refused to go further and overturned the lower court’s orders in relation to the removal of of the applicants’ names from the archive and their availability on the El Pais website’s internal search engine.  As a result, the integrity of the historic archive was preserved whilst the story of applicants’ historic crimes and addictions are no longer available on ordinary internet searches.

There is a strong argument that, in relation to individuals who are not public figures and who were involved in events of no general historic interest, this is a proper and proportionate way to balance privacy and freedom of expression.

Hugh Tomlinson QC is a member of Matrix Chambers and an editor of Inforrm