MR JUSTICE WARBY
Approved Judgment
NT1 & NT2 v Google LLC
action is concerned, as well as s 10 (the right to prevent processing) and s 14 (the right
to blocking, erasure, etc.).
98.
The first issue is whether s 32 is engaged at all; put another way, have the personal
data at issue been processed or will they be processed “only for the special purposes”?
Closely associated with that question is the issue of whether processing by Google is
undertaken “with a view to” publication for journalistic purposes. In my judgment,
Google’s case on the Exemption Issue fails at this threshold stage. I can accept the
starting point of Google’s argument, that the concept of journalism in EU law is a
broad one. The concept extends beyond the activities of media undertakings and
encompasses other activities, the object of which is the disclosure to the public of
information, opinions and ideas: see, eg Tietosuojavaltuutettu v Satakunnan
Markkinapörssi Oy Case C-73/07 [2010] All ER (EC) 213 [61]. But the concept is
not so elastic that it can be stretched to embrace every activity that has to do with
conveying information or opinions. To label all such activity as “journalism” would
be to elide the concept of journalism with that of communication. The two are plainly
not the same, and I do not consider that Google’s own activity can be equated with
journalism.
99.
Nor can I agree with the narrower version of Mr White’s submission, which asserts
that the concept of journalism is apt to cover, at least in the present cases, the purpose
of the service provided to internet users by Google’s search engine. It is submitted
that the process of making search results available is “for the purpose of” enabling
users to access third party publishers’ content which discloses information, opinions
and ideas. Mr White is quick to emphasise that Google is not a publisher of the
material at the URLs; it is only a facilitator: see Metropolitan International Schools
Ltd v Designtechnica Corpn [2009] EWHC 1765 (QB) [2011] 1 WLR 1743. But he
points out, fairly, that this is not in itself an obstacle to its reliance on s 32. The scope
of the exemption is not confined to processing which consists of journalistic
publication by the person relying on the exemption; it extends to processing
“undertaken with a view to the publication by any person” of any journalistic material
(emphasis added). The argument is that the information available at the URLs
complained of in this case consist of journalistic material published by third parties,
and Google’s role is undertaken “with a view to” such publication, facilitating
publication by the third parties. This narrower argument can be characterised, without
meaning to disparage it, as parasitic. It depends upon the character of the underlying
publication, and can only be relied on where that publication is for purposes properly
characterised as journalism, or for one of the other special purposes. Much material
that people want to have delisted will not be within those confines.
100.
There may be a range of support or ancillary activities that are undertaken by those
who are not themselves publishers, but which involve processing the sole and
exclusive purpose of which is to enable third parties to publish journalistic material.
Processing by a printer to which a newspaper has outsourced its production might
qualify. But I do not consider that this can fairly be said of an ISE such as Google. Its
activities are not exclusively subsidiary, subservient, or ancillary to those of any
publisher. The reality, as is clear from the evidence of Ms Caro and common
knowledge, is that the processes of obtaining, indexing, storing, and making available
information that are engaged in by an ISE are automated, and governed by computerbased algorithms. The “All” search function is carried out indiscriminately, in the