Key facts of the case:
(Reference for a preliminary ruling from the Audiencia Nacional (Spain))
(World Wide Web – Personal data – Internet search engine – Data Protection Directive 95/46 – Interpretation of Articles 2(b) and 2(d), 4(1)(a) and 4(1)(c), 12(b) and 14(a) – Territorial scope of application – Concept of an establishment on the territory of a Member State – Scope of application ratione materiae – Concept of processing of personal data – Concept of a controller of processing of personal data – Right to erasure and blocking of data – ‘Right to be forgotten’ – Charter of Fundamental Rights of the European Union – Articles 7, 8, 11 and 16)
Results (sanctions) and key consequences of the case:
138. In the light of the above considerations, I am of the opinion that the Court should reply as follows to the questions referred by the Audiencia Nacional:
- Processing of personal data is carried out in the context of the activities of an ‘establishment’ of the controller within the meaning of Article 4(1)(a) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data when the undertaking providing the internet search engine sets up in a Member State, for the purposes of promoting and selling advertising space on the search engine, an office or subsidiary which orientates its activity towards the inhabitants of that State.
- An internet search engine service provider, whose search engine locates information published or included on the internet by third parties, indexes it automatically, stores it temporarily and finally makes it available to internet users according to a particular order of preference, ‘processes’ personal data in the sense of Article 2(b) of Directive 95/46 when that information contains personal data.
However, the internet search engine service provider cannot be considered as ‘controller’ of the processing of such personal data in the sense of Article 2(d) of Directive 95/46, with the exception of the contents of the index of its search engine, provided that the service provider does not index or archive personal data against the instructions or requests of the publisher of the web page.
- The rights to erasure and blocking of data, provided for in Article 12(b), and the right to object, provided for in Article 14(a), of Directive 95/46, do not confer on the data subject a right to address himself to a search engine service provider in order to prevent indexing of the information relating to him personally, published legally on third parties’ web pages, invoking his wish that such information should not be known to internet users when he considers that it might be prejudicial to him or he wishes it to be consigned to oblivion.