The CJEU’s judgment against Google has been hailed as a “Landmark Ruling“. I agree that this judgment is a landmark ruling – however, not for the reason everyone else is making it out to be. As noted earlier, the “Right to be Forgotten” isn’t really in the holding of the judgment. Further, the “long-arm” application of EU law isn’t something new (at least to US attorneys). What is new is the reason for allowing a right of deletion against a search engine and not the underlying publisher of the original facts.
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EU Privacy Law
The CJEU’s Judgment Against Google: What It Doesn’t Mean
By John Tomaszewski on
The Court of Justice for the European Union (“CJEU”) issued a judgment in the case Google v. AEPD which has garnered a significant amount of attention. The two primary reasons for this attention (besides it is a case against Google – which usually is newsworthy) are 1) the seeming expansion of EU law into extra-territorial reach, and 2) the recognition of the “Right to be Forgotten”. Several authors have taken it upon themselves to spill quite a bit of ink on this judgment. And, there is some trepidation that business will be negatively impacted in a new and significant way under this judgment. A careful reading of both the Advocate General’s Opinion as well as the CJEU’s judgment in this matter does show how the EU is progressing in the matter of cross-border privacy protections. However, this judgment may not be as far reaching as some commentators have thought.
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Legitimate Interests – Alternative to Notice & Choice?
By John Tomaszewski on
To continue my prior post on the Article 29 Working Party’s Opinion 6/2014, it is important to take a closer look at the specifics of the notion of a Controller’s “Legitimate Interests”
Unlike all the other criteria for lawful processing, Article 7(f) is the only one which specifically articulates the idea that commercial interests should have weight in the calculus of “fair and lawful” processing. In each of the other criteria, if the criteria is met, the grounds for processing are considered a priori legitimate. In Article 7(f), each purpose for processing will need to have the balancing test engaged. This is going to require a bit more analysis than the other criteria. However, because of the fact that this analysis is internal to the business, it may well be less onerous than other options would be (e.g. having the DPA opine as to the legitimacy of the processing).
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