Opinion: Google right this time – ECJ hopelessly wrong

by 28 May 2014
This article was written by UK consultant, Neil Cameron.

Imagine this. It is 1963. Three years ago a very embarrassing incident happened in your life – you were photographed coming out of The Ivy with someone else’s wife. There was a Paparazzo (the term had only just been coined) hiding behind a taxi and he grabbed a shot before disappearing down Upper St Martin’s Lane. The next day your photo is all over the papers, with accompanying articles. You are very embarrassed, you get divorced, she gets divorced – you hope it will all go away.

Then – a few years later – whilst it is no longer on everybody’s lips – you realise it will never go away. So in 1963 you go to the courts and sue all the cuttings agencies that store copies of newspapers for research purposes, and get a judgment ordering them to remove all those offending articles from their back issues and archive copies. This has to be done with scissors.

Then you sue anybody who happens to have an old copy of that newspaper hanging around; libraries, clubs, private citizens, your ex-wife, everybody – they too have to remove and destroy the offending material.

Justice is – apparently – served, and you no longer have to live with the shame of knowing that anyone will ever be able to produce, or see, those photos again.
Except that would never have happened, right; because no court in the world could possibly be that stupid, right. You can’t rewrite history to suit your personal or particular purposes, and you should never be able to do so.

Now we jump to the present day, and step forward the Court of Justice of the European Union which has just delivered itself of a judgment against Google that is – effectively – the modern concomitant of that fictitious decision. It is just as stupid, and even worse than that I believe that it will prove to be ultimately unenforceable. Unenforceability of a judgments is a fatal defect for any court seeking to promulgate its own authority, and promote its customer base. Be of no doubt, courts are in the legal service delivery business and need to sell their amenities and gain commercial credibility just as much as – say – Google. In the forum shopping business, you want your court to be the forum of choice.

Well, this counts as an own goal, and shooting oneself in the foot, and any number of other suitable metaphors. Because they will have to climb down and it’s going to be messy, and it’s going to cause such embarrassment for the Court that it will wish that history could be rewritten.

So; what happened? Well, 16 years ago a certain Spanish gentleman named Mario Costeja Gonzalez had a little legal difficulty over the sale of property necessitated by the need to recover money he owed a third party. Well, it was 16 years ago. His view is that the matter had been resolved and should no longer be linked to him. The problem is that when idly Googling himself one day, as we all do, he noticed that references to this old incident keep cropping up in the Web sites retrieved by the search. He does not wish to be permanently linked to these stories, so he sued Google Spain and Google to have the links removed, on the basis of his ‘right to be forgotten’. And yesterday, he won.

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