As mentioned in the previous post herein, the IFAI v Google case is so complex that it could not be discussed in one single post, so I divided up my ideas thereupon in two parts. Mind you, these are posts on the case itself, not on the underlying rationale of the «right to be forgotten», on which Google’s Advisory Council just released its report.
The most obvious questions to be made about this case, other than the possible or expected outcome, are: «Was IFAI trying to follow in the European Court’s footsteps?» And if it were: «Could it and should IFAI follow in the European Court’s footsteps?» The answer to the first question is, very obviously, «YES, it was», and it seems to be making a point out of it, prominently featuring an icon on its website that links to the public version of the case file… much like other icons therein linking to other relevant current affairs of said DPA, such as the overhauling of the freedom of information law and the novel law on privacy and data protection relative to the State.
Clicking on that conspicuosly-placed icon will lead you to the decision in the instant case, in which page 34 of 39 you’ll read this:
«As the right to data protection, is a human right and considering the pro personae principle in article 1 of the Political Constitution of the United Mexican States, this Plenary (Council) takes as a guiding criterion and reinforcing the foregoing, the ruling of the Court of Justice of the European Union in case C-131/12, corresponding to the proceeding against Google Spain, S.L. and Google Inc., where the relevant part states:
(80) It must be pointed out at the outset that, as has been found in paragraphs 36 to 38 of the present judgment, processing of personal data, such as that at issue in the main proceedings, carried out by the operator of a search engine is liable to affect significantly the fundamental rights to privacy and to the protection of personal data when the search by means of that engine is carried out on the basis of an individual’s name, since that processing enables any internet user to obtain through the list of results a structured overview of the information relating to that individual that can be found on the internet — information which potentially concerns a vast number of aspects of his private life and which, without the search engine, could not have been interconnected or could have been only with great difficulty — and thereby to establish a more or less detailed profile of him.
Article 2(b) and (d) 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 are to be interpreted as meaning that, first, the activity of a search engine consisting in finding information published or placed on the internet by third parties, indexing it automatically, storing it temporarily and, finally, making it available to internet users according to a particular order of preference must be classified as ‘processing of personal data’ within the meaning of Article 2(b) when that information contains personal data and, second, the operator of the search engine must be regarded as the ‘controller’ in respect of that processing, within the meaning of Article 2(d).
Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 are to be interpreted as meaning that, in order to comply with the rights laid down in those provisions and in so far as the conditions laid down by those provisions are in fact satisfied, the operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful.
Having established that IFAI seems determined to follow the «Costeja Case», answers the second question «could it and should it?» may vary, but I would opine: «No», for the following reasons:
- Not all DPAs and/or Courts the world over are following the ruling in the «Costeja Case» to the letter.
In the Costeja Case observations were submitted to the ECJ by the European Commission and the governments of Asutria, Greece, Italy, Spain and Poland; while they sided with Mr. Costeja and Spain on some issues, they did not do so across the board nor unanimously. Even national courts in Europe have not found that the Costeja Case should be followed blindly; whereas a French court sided with a Mr. Shefet on a like case where he sought to have search results on defamatory materials accusing him online of professional malpractice, fraud and even connections to the Serbian mafia removed from Google’s global search results, not just France’s, a court in Amsterdam sided with Google against a request by the owner of an escort agency in 2012 for ‘attempted incitement of contract killing’, who wanted to have links removed to online publications linking him to the crime.
In Latin America, both courts of appeals and the Supreme Court of Argentina have ruled in favor of Google and Yahoo! on cases akin to the Costeja Case, where models Virginia da Cunha and María Belén Rodríguez sought to have URLs linking to sites which associated their images to pornographic content removed, as well as damages, much in the way the Fonovisa v Cherry Auction case serves as a defense against secondary liability for online copyright infringement in certain cases. No matter how much European influence there may be in our countries’ data protection framework, the Latin American regimen and context are much different from Europe’s.
On the whole, my thoughts on why IFAI ran amiss in finding against Google in the instant case can be summed up as follows:
- The decision is an open and abrupt departure from IFAI’s decision in a like case against the same company.
There is a principle called «Stare Decisis«, which in Mexico we call «analogy», whereby all things remaining equal (meaning no fundamental changes in the law or regulations, for example) like cases should be decided in like ways. That is what gives us precedent, which in turn gives us guidance and certainty.
As indicated in my previous post, IFAI found no liability on the part of Google Mexico in a previous case decided in the same year (2014) also involving search results from Google, so much so that the third finding for that case stated that:
«[f]rom the information in the file being acted upon it is found that as regards the services relative to the search engine and email that in their time gave rise to the opening of the file that is acted upon, as well as the statements of the Complainant in his writ of February 6, 2014, these are provided by Google, Inc., a corporation domiciled in the United States of America, over which this Institute lacks jurisdiction by territory, as it escapes the content of the LFPDPPP, as provided for in its article 1 and is not within the provisions of article 4 of its Regulations…»
The reason I find this concerning is that in a practice as privacy and data protection, which is in its infancy in Mexico, us practitioners need clear guidance from the DPA in order to be able to advise our clients, but even more so our clients need certainty so that they can know what their businesses should expect from the DPA. Absent either or both, we are all simply at a loss and exposed to the whims of the DPA, or any other relevant authority for that matter.
As noted above, the Argentinean courts have followed precedent, whereas IFAI did not.
- The ARCO request and Rights’ Protection Claim from which the case stems should have been dismissed.
Numeral 1) in the data subject’s complaint to IFAI, which can be read in the very first page of the decision, states that:
«1) In the referred URL contain my name, that of my (late) father and of my brothers, as well as clipped and out-of-context information of my activities as a businessman and merchant, which not only affects my most intimate sphere…»
Key words there: businessman and merchant. The Regulations to the Law provide for an exception to the application of its provisions (mind you, not the Law’s provisions) relative to the information of a data subject regarding their capacities as merchants and professionals, and as per the data subject’s own claim the former would be the case as concerns him. While this exception has an issue of legality and if applied it could be successfully challenged in court, as the exception should have been provided for in the law and not in the Regulations thereto, fact is IFAI should have applied it, but didn’t.
- The decision unduly pierces the corporate veil.
Under Mexican law there are very few and limited instances where the corporate veil can be pierced: labor, tax, anti-trust and some instances in financial laws and regulations that provide for effective control as a criteria for their application to a transaction or operation. So unless expressly provided for, a Mexican authority, whether administrative or judiciary, may not pierce a corporate veil.
However, IFAI did when it decided, on merely formalistic grounds, that Google Mexico was the data controller for the information that the data subject complained about, such formalistic grounds being that:
- The purveyance of search engine services was provided for under the corporate purpose in its bylaws, which it had disregarded in the preceding case on the results from abctelefonos.com.
- Screenshots of the website http://www.google.mx, where the name of our country can be seen below the search box, there’s a reference to the location of their Mexico City office, and so and so forth. However simply slapping a thumbnail of our country’s flag on a website cannot be held as sufficient grounds for a Mexican authority to exercise its jurisdiction on a foreign corporation, even less for it to find a Mexican corporation liable for the actions of a foreign corporation. If IFAI had conducted a WhoIs search of the records of Akky.mx (the Registry/Registrar of the .MX ccTLD) for the google.mx domain name, it would have found that the Registrant thereof, and therefore the party that could perhaps and eventually be found to be liable for the information therein is Google, Inc., well away from IFAI’s jurisdiction in Montainview, CA:
The domain name in question is even directed to Google’s servers in the USA. As Google responded to IFAI in the instant case, it has no servers in Mexico.
If wording in bylaws and/or contracts is going to be found to be grounds for liability in privacy and data protection, things can get very complicated, very quickly, for any number of potential data controllers in this country.
- There is no evidence in this case that the data subject took previous action relative to the allegedly infringing information.
Although, as IFAI quoted in its decision, the European Court ruled that:
«…the operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful. »
…from the Costeja, the Dan Shefet and even the case in the Netherlands cases one can find that the complainants/plaintiffs took action prior to bringing their cases. Mario Costeja himself, for example, had settled his debt with the Spanish social security, which rendered the publication indexed by Google incorrect, irrelevant and outdated. That doesn’t appear to have happened in this case, as the data subject offers no evidence of having acted against the source of the information he complained against.
Incidentally, it seems that exercising the «right to be forgotten» may turn out to be an exercises in futility. Whereas Mario Costeja sought to have that debt stricken from his online record, he and that are constantly referred in scholarly discussions and publications on privacy and data protection the world over. In the instant case, other commentators and journalist Sergio Sarmiento published information that reveals the identity of the data subject.
- As a matter of policy, in a struggling democracy as Mexico’s, it’s just not a good idea to enforce the right of cancellation/be forgotten to the detriment of freedom of speech, of the press and access to information.
Naturally, the «right to be forgotten» can cut against freedom of speech, of the press, access to information and what not. That is why the European Court concluded in its ruling that:
«…those rights override, as a rule, 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. However, that would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of its inclusion in the list of results, access to the information in question.»
In the instant case the allegedly infringing information appears to deal with the data subjects alleged involvement in some case regarding the management of a transport company in Mexico, donations made thereby to a charity ran by a formers President’s First Lady, references to the bank bailout of the ’90s, and so on and so forth, which could be regarded as being of interest to the general public, whereas other information would not, even if it concerned the same data subject.
In a country such as Mexico, where current affairs are, perhaps not always better, but more actively discussed through and thanks to social networks and online media, authorities should be very wary of where and how they draw the line on what is of interest to the general public, and should therefore remain available, and what is and should not.
It will ultimately fall upon the administrative and judiciary courts to decide who is right after all, whether IFAI or Google, and to provide us with a profoundly interesting and rich precedent. Said courts will undoubtedly apply a deeper analysis and criteria, which IFAI was probably not in a position to apply, as it is after all the DPA that applies a protectionist legal framework that is heavily weighed in favor of data subjects. However, in principle my money is on Google, for the reasons outlined above and many others that Google has probably already thought about.
The case has sparked a heated debate in the privacy/data protection community in Mexico; Mr. Andrés Calero, former General Director of Verification in IFAI and myself (@1’32») were interviewed by CNN Mexico to opine on it: