MR JUSTICE WARBY
Approved Judgment
NT1 & NT2 v Google LLC
“appears, having regard to all the circumstances of the case,
to be inadequate, irrelevant or no longer relevant, or
excessive in relation to the purposes of the processing at
issue carried out by the operator of the search engine” ([94],
emphasis added).
(4)
A delisting request should be assessed by reference to the circumstances which
obtain at the time when the request is made: [94], [96].
34.
The Court held that the seriousness of the potential effects of listing by an ISE meant
that it “cannot be justified by merely the economic interest which the operator of such
an engine has in that processing”. That was a reference to Google’s rights under
Article 16 of the Charter. The validity of a delisting request should be determined,
said the Court, by striking “a fair balance” between “the legitimate interest of internet
users potentially interested in having access” to the information and “the data subject's
fundamental rights under articles 7 and 8 of the Charter”: [81]. At [81], and again at
[97], the Court observed that the latter rights would “as a general rule” override not
only “the economic interest of the operator of the search engine but also the interest of
the general public in finding that information on a search relating to the data subject’s
name”. Whether it did so in an individual case would depend however on such factors
as “the nature of the information in question and its sensitivity for the data subject’s
private life and on the interest of the public in having that information, an interest
which may vary, in particular, according to the role played by the data subject in
public life… ”. That role might be a reason for concluding “that the interference with
his fundamental rights is justified by the preponderant interest of the general public in
having, on account of inclusion in the list of results, access to the information in
question.”
35.
The information complained of in Google Spain had initially been published 16 years
earlier, and was drawn from the on-line archives of a part of the newspaper containing
official announcements. On the facts, the CJEU held that having regard to the
sensitivity of the data, and since there did not appear to be “particular reasons
substantiating a preponderant interest of the public” in having access to that
information “in the context of such a search”, Articles 12 and 14 of the DP Directive
required the removal of the links from the list of results: [98].
The Article 29 Working Party Guidelines
36.
Article 29 of the DP Directive established a Working Party on the Protection of
Individuals with regard to the Processing of Personal Data (“the Working Party”). Its
membership includes a representative from the regulatory authority of each Member
State. The functions of the Working Party are described in Articles 29 and 30 of the
DP Directive and Article 15 of Directive 2002/58/EC. In summary, it is empowered to
examine and make recommendations on matters relating to data protection in the EU,
and has “advisory status”. On 26 November 2014 the Working Party adopted and
published “Guidelines on the Implementation of [Google Spain]”. The document falls
into three parts: An Executive Summary; Part I entitled “Interpretation of the CJEU
Judgment”; and Part II, entitled “List of common criteria for the handling of
complaints by European data protection authorities”. I have considered all three parts
of the Guidelines document.