CJEU in favour of the right to be forgotten. Judgment in Google Spain and Google.

Posted by Europe of Human Rights on 13/05/14

In the long-awaited judgment in the Google Spain and Google case CJEU did not follow the opinion of Advocate General. It adopted an approach which is much stricter towards the operators of search engines. After striking down the data retention directive, CJEU yet again took a strong stand in favour of privacy. Interestingly only twice in the entire judgment did the Court refer to freedom of expression.

Search engines enable us to seek, receive and impart information. They render online content accessible and useful. This is why limiting the reach of search engines and demanding to withdraw some links from search results should be done with caution. The role of search engines has been recognized in 2012 by the Council of Europe Committee of Ministers who considered it essential that search engines be allowed to freely crawl and index the information that is openly available on the Web and intended for mass outreach (see: Recommendation CM/Rec(2012)3 of the Committee of Ministers to member States on the protection of human rights with regard to search engines, adopted on 4 April 2012).

At the same time, search engines can retrieve and group widespread information of various types about a single person. These capabilities may significantly affect individuals, both in their personal lives and within society. In the recommendations mentioned above the Committee of Ministers recognized the necessity to differentiate between various types of content. According to the Committee there is a need to review search ranking and indexing of content which is not intended for mass communication or mass communication in aggregate. The Committee proposed for example listing content sufficiently low in search results in order to strike a balance between the accessibility of the content in question and the intentions of its producer. The Committee recommended States to “enhance transparency in the collection of personal data and the legitimate purposes for which they are being processed”, “enable users to access easily, and, where appropriate, to correct or delete their personal data processed by search engine providers” and “develop tools to minimise the collection and processing of personal data, including enforcing limited retention periods, adequate irreversible anonymisation, as well as tools for the deletion of data”. Today’s judgment of the CJEU is in line with the Committee’s concerns, and seems to take an even stricter approach as regards the obligations of operators of search engines.

The case Google Spain and Google (C-131/12) originated from a complaint of a private person, Spanish citizen, who demanded from Google the removal of a number of references from search results. Spanish Data Protection Agency supported this request, but stated at the same time, that the information available on the online page of the local newspaper, where it originally appeared, could stay there because of its lawful character. Spain’s highest court had doubts whether the decision about the removal of the data from search indexes was correct and made a reference for a preliminary ruling to the CJEU. The national court asked, among others, whether the data subject should be allowed to request from Google de-indexing of information that refers to him personally.

CJEU ruled today that, indeed, it is possible to demand from operators of search engines the removal of links from search results. This is possible even if the content linked to is lawful and its original source remains untouched – the Court clearly distinguished between the right to publish information and to display it in the search result. It underscored that these activities have a different level of impact on the individual and their right to privacy. Referring to Article 7 of the Charter that guarantees the right to respect for private life and article 8 which proclaims the right to the protection of personal data, and relying on the provisions of Data Protection Directive, the Court decided that it is possible to order the operator of the search engine removal of links that are displayed in search results and that redirect to web pages published by third parties containing information relating to a person. The Court held that “given the ease with which information published on a website can be replicated on other sites and the fact that the persons responsible for its publication are not always subject to European Union legislation, effective and complete protection of data users could not be achieved if the latter had to obtain first or in parallel the erasure of the information relating to them from the publishers of websites.”

Moreover, according to the Court individual rights override not only the economic interest of the operator of the search engine but also the interest of the general public in having access to that information upon a search relating to the data subject’s name. At the same time, the Court acknowledged that there may be exceptions to that general approach.

While the Advocate General downplayed the role of search engines, claiming that is was passive, CJEU underscored that search engines are a key actor in the overall dissemination of data and that they render it accessible to internet user who otherwise would not find it. Thanks to search engines users can obtain a “structured overview” of information relating to individuals and establish their profiles and that “the activity of a search engine is (…) liable to affect significantly, and additionally compared with that of the publishers of websites, the fundamental rights to privacy and to the protection of personal data”. According to the Court activities of search engines not only constitute an independent processing of personal data, operators of search engines are also data controllers and have all the obligations that follow from that fact.

Zuzanna Warso,  z.warso at hfhr.org.pl

Rise and fall of data retention directive

Posted by Europe of Human Rights on 08/04/14

The Court of Justice of the European Union has declared the so-called Data Retention Directive to be invalid. Interestingly enough, in 2013 the same Court ordered Sweden to make a payment of 3 million Euro for its delay in transposing this law. Back then the CJEU ruled that a delay in the transposition is liable to have consequences for public and private interest.

In the current case, the requests for a preliminary ruling were filed with the Court of Justice of the European Union by Irish court and Austrian Constitutional Tribunal. The Irish case was initiated by the Digital Rights Ireland, an organisation defending digital fundamental rights. The Austrian case found support of, among other, 11 thousand Austrian citizens.

The Data Retention Directive was adopted in order to prevent serious crime, in particular organised crime and terrorism. The Court of Justice of the European Union has ruled today that the interference with fundamental rights connected with the implementation of European law is too far-reaching.

In the opinion on the case, advocate general Cruz Villalon also concluded that the application of the Data Retention Directive could not be reconciled with the provisions of the European Union Charter for Fundamental Rights and with the necessity to protect the right to privacy.

In its judgment, the Court of Justice noted that the data retained on the basis of retention regulations can provide precise information on the private lives of users, such as the habits of everyday life, place of residence, social relationships and social environments frequented.

Even though the Court of Justice states that retention itself can be justified by the need to combat serious crime and protect public safety, by adopting the Data Retention Directive the EU institutions crossed the boundary set by the principle of proportionality. The Court emphasized that the Directive does not guarantee that the interference in the privacy will be sufficiently circumscribed to ensure that that it is strictly necessary to achieve the above-mentioned goals. (more…)

Be aware of copyrights fees!

Posted by Europe of Human Rights on 27/02/14

In each member states debates are conducted on the need to pay copyrights fees to a collecting society acting on behalf of authors. Every service provider or manufacturer that wishes to broadcast music to its employees or client needs to pay such a fee. This raises concerns as to the right to access culture and education. (more…)

Can hyperlinks violate IP law? CJEU ruling in C-466/12

Posted by Europe of Human Rights on 21/02/14

Under EU law it is the author who decides about the public availability of his or her work.

In Sweden an administrator of a website placed on his webpage hyperlinks to publicly available articles. Authors of the texts claimed that this violated their IP rights, because they did not give permission for this specific release of their work.

In this situation, a Swedish court asked the Court of Justice of the European Union the question of whether placing a link to the content constituted an “act of communication to the public”, and therefore there had been a violation of copyright law.

In its judgment in Svensson et al. The Court of Justice of the European Union agreed that sharing links with unspecified but fairly large number of customers constitued an  “act of communication to the public”. In general, the person making such an act should obtain the consent of the author.

At the same time, the Court emphasized that the author’s consent is required for making their work available to a new audience, namely that which has not been taken into account in the initial communication. In the case of the site sued for the alleged violation of IP law, the audience was the same as the recipients of the page where journalists originally placed their content.

Therefore, the Court held that there was no copyright infringement. The person running the website could provide links and redirect his users to works available on a freely accessible basis on another site.
The Court distinguished this situation from the situation of sharing content that is intended only for a limited group of subscribers. According to the logic of the decision, if new users were not the primary audience, providing access to that kind of content would be a copyright infringement.

Right to residence: not for prisoners

Posted by Europe of Human Rights on 29/01/14

On 16 January 2014 the CJEU gave a preliminary ruling in the case (C-400/12) concerning the Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.

Ms G. is a Portuguese national that moved to UK with her husband in April 1998. On 27 August 2009 Ms G. was sentenced to 21 months’ of imprisonment for beating one of her children. On 11 May 2010, while she was still in prison, Ms G. applied to the Secretary of State for a certificate of permanent residence in the United Kingdom. In July 2010, the Secretary of State refused the application and ordered that Ms G. be deported on grounds of public policy and public security. Despite serving her sentence Ms G. was detained in custody. In the deportation decision, the Secretary of State took the view, first, that the enhanced protection against expulsion provided for in Article 28(3)(a) of Directive 2004/38 is dependent on the integration of the Union citizen into the host Member State and that such integration cannot take place while that citizen is in prison. Secondly, the Secretary of State found that Ms G. was not entitled to the intermediate level of protection against expulsion because she had not shown that she had acquired a right of permanent residence and, in any event, there were serious grounds of public policy and public security for expelling her. Thirdly, the Secretary of State found that, a fortiori, Ms G. was not entitled to the basic level of protection against expulsion.

Ms G. lodge an appeal against the decision. The first instance Tribunal found that Ms G. had resided in the United Kingdom for a period of over 10 years prior to the deportation order. However, the Tribunal also found that, in the absence of evidence to show that her husband had been employed or that he had otherwise exercised rights conferred by the FEU Treaty, Ms G. had not proved that she had acquired a right of permanent residence for the purposes of Directive 2004/38. The Secretary of State brought an appeal to the Upper Tribunal, which referred to the CJEU with questions concerning the method of calculating the period of 10 years of residence, as well as questioning if serving a prison sentence interrupted the residence period.

The Court found that the protection from expulsion in Directive 2004/38 is based on the degree of integration with the host member state. The ten year period of residence under Article 28(3) must be continuous and must be counted back from the date of the expulsion decision. The CJEU underlined that in principle, periods of imprisonment cannot be taken into account in establishing ten years’ continuous residence. The Court stressed that where continuity of 10 years’ residence is broken by imprisonment, the host state must consider, on a case by case basis, whether the integrating links forged with the host member state have been broken such that the ‘imperative grounds’ protection is not available. The Court highlighted that the fact that someone has resided in the host state for 10 years or more prior to imprisonment, should be a fact which may be taken into consideration. However, the CJEU gives no guidance on what constitutes an integrating link or when it’s broken.

This ruling follows the reasoning presented by the Court in the case Nnamdi Onuekwere v. Secretary of State for the Home Department (ruling of 16 January 2014, C-378/12). Mr Onuekwere, a Nigerian national who married an Irish national exercising treaty rights in the UK, was convicted twice after the marriage and spent over a year in prison. The Luxemburg Court was asked to rule on whether he could ‘count’ the period he had spent in prison as legal residence for the purposes of acquiring a permanent right of residence under Article 16 of Directive 2004/38.

The CJEU ruled that periods in prison cannot be counted towards permanent residence. The court emphasised the importance of “social cohesion” and the need for genuine integration as a way to “strengthen the feeling of Union citizenship”. A prison sentence, which demonstrates that the person concerned does not comply with the values of the host member state as expressed in its criminal law, shows that the link of integration with the host state has been undermined. Therefore, it would be contrary to the aims of the Directive to allow periods in prison to count towards a right of permanent residence.

Dominika Bychawska-Siniarska, lawyer at the Helsinki Foundation for Human Rights

Case C-176/12 AMS – EU Charter in disputes between private parties

Posted by Europe of Human Rights on 22/01/14

A person whose rights are specified in a directive not properly implemented and who is in conflict with another private party cannot rely on the directive before the court. If the rights are not precisely named in the Charter, the only option is to claim compensation from the state that failed to adopt appropriate national provisions.

The case C-176/12 Association de médiation sociale v Union locale des syndicats CGT concerned the rights of workers. A French court asked the Court of Justice of the European Union whether an article of the EU Charter of Fundamental Rights further specified in a directive, can be relied on in a dispute between private parties, and whether national provisions contrary to the directive should be disapplied.

According to the Charter workers have the right to information and consultation. These rights are governed in Article 27 of the Charter and specified in a directive that established a framework for informing and consulting employees.

According to the directive when an undertaking reaches a certain threshold of employees (enumerated in Article 3 of the directive) staff representatives must be elected or a union representative must be designated. The EU directive has to be implemented by Member States. The relevant French law provides that some categories of employees are excluded from the calculation of the staff number.

AMS – a French association argued that in the process of designating the representative the number of staff was overrated. The opinion was based on the French law. Mr Laboubi, who was the chosen representative, together with the unions claimed, on the other hand, that French law violated the EU law, which, according to them, does not allow exclusions.

In its judgment the Court held that French provisions implementing the directive are indeed flawed – the Court decided that the EU law does not allow the exclusion of certain groups of workers when calculating the number of staff.

According to general rules, when articles of the directive are unconditional and precise enough they can have a direct effect.  In the discussed case, the provisions of the directive could have a direct effect – they are both unconditional and precise. However, since the conflict takes place between two private parties, the unions cannot rely on the directive to claim their rights. In such a case the AMS would face negative consequences and would have additional obligations because of the failure of the state to properly implement the directive. This would be against the established rules of EU law.

At the same time, the provision of the Charter – Article 27 – that gives workers the rights to information and consultation, on its own, is not precise enough to rely on it in order to conclude that national provisions that exclude some groups from the number of staff should not be applied. Consequently, a person whose rights are specified in a directive not properly implemented and who is in conflict with another private party cannot rely on the directive before the court.

Zuzanna Warso,  z.warso at hfhr.org.pl

More on the case:

European Law Blog

EU Law Analysis


Rights of same-sex couples under EU law – CJEU judgment in Hay (C‑267/12)

Posted by Europe of Human Rights on 16/12/13

The law on the marital status is a competence of the Member States. The EU law prohibits, however, discrimination in employment based on sexual orientation.

Recently the CJEU ruled that same sex couples who enter into registered partnerships deserve the same benefits at the workplace as the married employees, the reason being that their legal situation is comparable to the situation of spouses. Depriving a person who registered a partnership of a leave or a bonus granted to staff on the occasion of a marriage would constitute discrimination based on sexual orientation. (more…)

European asylum system – judgment in Shamso Abdullahi v Bundesasylamt (C‑394/12)

Posted by Europe of Human Rights on 11/12/13

Ms Abdullahi, aged 22, was born in Somalia. In 2011 she fled her country and went to Syria. Afterwards, through Turkey she escaped to the EU. First she entered Greece, and then travelled through Macedonia, Serbia to Hungary. After crossing the border between Hungary and Austria she was arrested.

In Austria, Ms Abdullahi lodged an application for international protection. Austria requested that Hungary take charge of Ms Abdullahi and Hungary agreed. Ms Abdullahi appealed that decision. She criticized the asylum situation in Hungary in the light of the European Convention for the Protection of Human Rights and Fundamental Freedoms that prohibits torture and inhuman and degrading treatment. Later Ms Abdullahi argued that actually Greece was responsible for her asylum application, and not Hungary. According to her Greece did not observe human rights in certain respects and that, accordingly, it was for the Austrian authorities to complete the examination of her asylum application.

On 10 December 2013 Court of Justice of the European Union answered question of the Austrian court. The CJEU decided that while it is possible to appeal the decision about a transfer of the asylum seeker to another EU state, the asylum seeker cannot decide on their own which country should examine their application. The Court recalled that the Common European Asylum System was created in order to “to speed up the handling of claims in the interests both of asylum seekers and the participating Member States”. The system is based on the assumption that all the participating States observe fundamental rights.

Ms Abdullah could oppose the transfer only by pleading systemic deficiencies in the asylum system in Hungary, which would mean a real risk of being subjected to inhuman or degrading treatment. According to the CJEU it is apparent from the documents placed before it that “there is nothing to suggest that that is the position in the dispute before the referring court.”


Advocate General on blocking access to websites that infringe copyrights

Posted by Europe of Human Rights on 05/12/13

Can copyright holders demand from internet service providers (ISPs) blocking access to sites that violate copyrights? According to Advocate General Cruz Villalon, they can. Judgment passed in the UPC Telekabel case will add to the growing CJEU case law related to the obligations of online intermediaries. It will enrich the ongoing debate on blocking websites and whether it is a lawful tool against online infringements. If the Court follows the opinion of Advocate General, it may also lead to a flood of similar cases. (more…)

MPs call for renewed PACE attention to human rights situation in Azerbaijan

Posted by Europe of Human Rights on 02/10/13

In the first substantive discussion on the human rights situation in Azerbaijan at the Council of Europe since the defeat in January of a key resolution at the Parliamentary Assembly of the Council of Europe (PACE), today a group of Azerbaijani and international human rights groups hosted a side event titled “Pre-election crackdown: human rights in Azerbaijan”. The event took place just eight days ahead of the country’s 9 October presidential election, and seven months ahead of Azerbaijan assuming the Chairmanship of the Council of Europe’s Committee of Ministers in May 2014. (more…)

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The European Union and the Council of Europe take a number of legislative initiatives and develop recommendations that have an impact on human rights in Europe. This blogs aims to comment on the impact of EU and CoE on european human rights from a CEE country perspective. more.