Google Spain not liable to enforce 'right to be forgotten'

In Alfacs Vacances SL v Google Spain SL [2012] (Unreported, Court of First Instance of Amposta, 23 February 2012), a Spanish district court held that Google’s Spanish subsidiary is not a proper defendant (ES) in a claim for an injunction to remove non-tortious but unwanted search results.  From reading this summary of the decision, it appears that the Court did not address the merits of the claim.

The claimant was the operator of a camping ground in between Barcelona and Valencia, where a tragedy occurred in 1978 which resulted in the immolation of approximately 200 campers by an explosion in a passing petrol tanker.  A Google search for ‘los alfaques camping’ now shows images of the disaster and a link to the Wikipedia page ranked above the company’s official website:

The claimant sought damages and an injunction requiring Google Spain to remove the images and reports of the disaster from “its” search results.

To understand why this action raises such substantial concerns, take a look at this insightful piece by Nate Anderson at Ars Technica.  Here was content (photographs of an old accident near the site of the claimant’s business) which was not defamatory, did not infringe copyright, was not proscribed by the doctrine of unfair competition, and did not fall afoul of any Spanish law.  Nevertheless, the claimant argued that Google should have a responsibility to remove the images and links, because they are adverse to the claimant’s commercial interests.  Once deindexed, the information would effectively disappear from the web since, although not deleted per se, users would have no feasible way to locate it.

In other words, the interest being protected is not a right to private and family life, but a right to revise history.  According to news reports, the Spanish data protection authorities have commenced over 130 proceedings against Google and other intermediaries for the deletion of historic data.

With any luck, we’ll have a reference to the Court of Justice before  long.  As if we needed another reason why a so-called ‘right to be forgotten’ is a laudable but extremely misguided idea.