@IFAIMEXICO rules to fine @GOOGLEMEXICO over #righttobeforgotten (Part I)

Timing is of the essence, and the release of the communiqué by IFAI, Mexico’s data protection authority, announcing its decision to fine Google Mexico for failing to comply with an individual’s objection to the processing of his data and IFAI subsequent order thereto, is no exception. It was released exactly one week ago, right on the eve of international data privacy day, and therefore remarked upon almost every single one of the participants in the conferences organized for that date. It was also very timely released less than 20 days after the political analysis magazine «Proceso» questioned IFAI’s unwillingness to act against Google, on grounds that it was near and dear to the current administration’s digital agenda, seemingly implying that afforded the search giant some measure of immunity.

However now IFAI ranks up there with countries such as the United States, Germany, the Netherlands and Spain, which have in one way or another acted against Google for transgressions to their privacy frameworks; however it is not the first time that Google has come before IFAI’s crosshairs, and also while many privacy commentators and scholars opine that this case bears a strong resemblance to the «Costeja Case» of the Spanish Privacy Agency and European Court of Justice regarding the «right to be forgotten», there are important nuances to it.

Key ideas following here folks: as of June 2002 there is a «FOIA-equivalent» Transparency Law in force in Mexico, which includes provisions on privacy regarding personal information in the power of agencies and instrumentalities of the Federal government. In 2009 the Mexican Constitution was amended for the right to data protection to be included among the human rights protected by it, and afford Federal Congress the power to pass laws thereupon. About a year thereafter Mexico’s federal privacy law (Ley Federal de Protección de Datos Personales en Posesión de los Particulares or LFPDPPP) was enacted. The amendment to the Constitution and both Federal statutes follow the model set by the European Union’s Privacy Directive, providing for 4 fundamental appurtenances of individuals as concerns the processing of their personal information:

1. Access thereto;
2. Rectification thereof;
3. Cancellation thereof, and
4. Opposition (to the processing thereof).

Having outlined the above, this is not the first time Google and IFAI have met face to face. In March 2011 IFAI ruled on case 4198/09, concerning the petition of an individual to the Federal Labor Board (the administrative court that hears labor cases in Mexico) for its online-searchable daily bulletin of cases to be heard on a given date to not include his name, so as to prevent him from being rejected by future employers on grounds of having sued a former employer.The petitioner had to sue in Federal court in order for his request to be honored by said Board and IFAI itself, following which the latter found on review that the measures proposed by the Board had been appropiate and in compliance with the rulin in the case wherein the Board proposed to:

• Modify the format o the files used to publish the Bulletin on the Board’s website, so that search engines cannot find and index the individual’s name with regards to the labor case concerned, and
• Directly request Google to delete from its indexes the information concerning the individual’s name with regards to the labor case concerned.

The record shows that the Board did reach out to Google therefor; however it remains unknown whether or not Google complied with the Boards request.

Then on March 2014, IFAI ruled on a verification proceeding initiated relative to Google for its caché of a website under the domain abctelefonos.com., which belongs to Nexus World LLP in the UK, for which a person complained about on grounds that the original source for the infringing information had removed it, but Google had not.

Google Mexico was served with a request for information to which it replied in terms that are relevant for the sanctions case at hand, so bear this in mid: it responded that as per its current bylaws its corporate purpose includes (bylaws in Mexico have these ridiculously long listings of things the corporation may do in pursuing its corporate purpose)…

1. Commercializing and selling online advertising and products and services for direct commercialization, in Mexico or abroad, on its own behalf or the behalf of third parties, as well as to provide all kinds of services through electronic means, including but not limited to, search engine, instant messaging, email, storage, reproduction and broadcast and retransmission of of data, and similar, annex and related services.

However another key concept is also quoted on that reply from Google Mexico to IFAI:

Notwithstanding the breadth of its corporate purpose, the activities that my principal in fact performs in Mexico center on those described in numeral 7 of article Third in its bylaws, particularly in the purveyance of administrative, financial, advisory and consulting services for corporations.

7. Receiving from other persons, individuals or corporations, as well as providing said individual or corporations whichever services necessary to comply with their corporate purposes, including but not limited to, administrative, financial, technical assistance, advisory and consulting services.

And then it underscored:

My principal does not provide the search engine service, as said service is provided by Google, Inc., an American corporation that owns the corresponding technological platform, with domicile at 1600 Amphitheatre Parkway, Mountain View…which operates and provides, amongst others, the search engine service for its users using its own servers and equipment. Therefore my principal does not gather nor process personal information of the users of the services provided by Google Inc.

Consequently,…Google Mexico, s de R.L. de C.V., is not the corporation that owns nor is responsible for the operation of the search engine service, as said services is offered and managed by Google, Inc. …Google, Inc., and Google Mexico, S. de R.L. de C.V., are different corporations, besides Google Mexico, S. de R.L. de C.V. is not a liaison office, branch or representative office of Google, Inc.

It further underscored that «Google Mexico only processes personal information of its employees and the databases that include physical files that contain them are the only elements that are protected pursuant to the LFPDPPP, and that exist in its facilities, and so it has been attested by the Verifiers…»

What follows is material for the instant case; in the Third finding («Considerando Tercero») to IFAI’s resolution in the verification proceeding said data protection authority 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…»

Based on the foregoing, IFAI found that there had been no violations of Google to the LFPDPPP, and resolved to have the file archived without further consequence thereto.

Bearing the above in mind, now consider that the instant case was initiated by a complaint dated July 22, 2014, wherein an individual referred having exercised his rights to the cancellation of his data and opposition to the processing thereof before Google with regards to 3 URLs found through its search engine, but having had no reply thereto, whatsoever, from Google Mexico, which is in and of itself a violation of the LFPDPPP. He claims that the information which deletion he requested included his name, his brothers’ (however the record does not refer that the complainant had authority and standing to represent his siblings) and his late father’s (also no reference to standing as executor of the gentleman’s estate), as well as «…clipped and out-of-context information on my activities as a businessman and merchant, which not only affects my most intimate sphere (honor and private life), but also current commercial and financial relationships…said information entails a grave risk to my personal security and physical integrity, as it is information linked to financial, patrimonial and judicial aspects…said information was uploaded and published to the «Google» search engine without my consent».

The above assertions by the complainant are interesting, insofar as Roman numeral II in article 5 in the Regulations to the LFPDPPP exempt information concerning individuals in their capacity as merchants from its provisions; while that poses legality issues that could lend themselves to successful challenges thereto in court, fact is that IFAI is bound by said Regulations and should therefore not have considered that information as protected under them and the LFPDPP. However it decided to move forward with the case, as per the complainant’s assertions Google failed to respond to his petition, which under the LFPDPP provides for a cause of action before said Institute under a «Rights Protection Proceeding», whereby IFAI may find for fault on the part of the Data Controller and order for the request to be complied with, but also mediate between the parties involved.

The bold assertions by the claimant’s counsel include statements that «Google (Mexico) possesses, controls, processes, authorizes, facilitates, shares, provides, makes possible, distributes, aids and abets the undue processing of sensitive personal data of our client, by allowing for information that does not comply with the requirements of the law, and much less with the principles… that govern the processing of personal information, to be uploaded, published and displayed through its «Google» search engine…».

Anecdotally, it seems that an inappropriately redacted public version of the file was released at some point and has been blogged and reposted by a number of commentators (just as in the Liverpool department store breach case, this blog deals in legal scholarship and not news, so it refrains from further facilitating access to information that was or is not meant to be made public by its originators and thus no hyperlinks to the leaked copy of the file are included), wherein enough information of the search results was visible to allow readers to trace the allegedly infringing URLs the complainant complained about and realize that it had to do with a transport company and allegations that it was one of many favored by the bank bailout of the mid-90s (re: «Fobaproa»). In this sense the case may have the same ironic, undesirable and unexpected collateral effect as the Costeja Case: instead of achieving oblivion, the complainant’s identity and data involved in the case will become pervasive in future discussions and comments on the case. Perhaps there are instances where a good SEO strategy yields better results than the law?

IFAI’s requests for information regarding the instant case, regarding it relationship to Google International, LLC, and Google, Inc., as well as the search engine services it provides, whether it has servers of its own, how its services are, or are not, linked to the aforesaid partners, etc., were responded much in the same way as those in the verification case previously discussed, with Google Mexico reiterating that it does not operate or provide in any way services on behalf of Google Inc., does not have servers of its own and doesn’t provide, in any way, search engine services, which are provided by Google Inc.

However IFAI departed from its criteria set in the previous case, and the Second finding in the ruling for this one established as the cornerstone for the decision to sanction Google Mexico exactly what the Third finding established as the cornerstone to absolve it: regardless that Google Mexico has no servers of its own and does not actually provide the search engine service in and of its own, as there is a provision in its bylaws whereby its corporate purpose includes the purveyance of such services it therefore does provide them and is consequently bound by the LFPDPPP with regards to them. To support this statement IFAI’s verification officers certified screenshots of searches of the complainant’s name made through http://www.google.com.mx, as well as of Google’s pages dealing with its Terms and Conditions, «About», «Locations», etc., on which grounds said Institute found that Google Mexico did provide search engine services that amount to processing of personal data, and is therefore bound by the LFPDPPP, under obligation to comply with the claimant’s petition and subject to that proceeding.

In this point one might wonder if the whole thing could have been prevented if Google Mexico had replied to the claimant’s petition; the answer, for short, is «NO»: under the LFPDPPP an individual has cause for action in a Rights Protection Proceeding not only if the Data Controller does not respond to his petition, but also if he’s in disagreement with the response. However, even if Google Mexico weren’t the Data Controller, it should have responded to the claimant, as articles 95 and 98 of the Regulations to the LFPDPPP state that all petitions by individuals must be responded by Data Controllers, whether or not they possess personal data of the petitioning individuals. IFAI further found that Google Mexico was in fact the Controller of the Data processed as concerns the instant case, and that it failed to invoke any of the exceptions in the law to the obligation to respond to an individual’s petition, or a legal impediment thereto.

It consequently ordered Google Mexico to perform the actions necessary to implement the complainants rights to have his personal data cancelled from its search results and to oppose such processing thereof, within the 10 business days following notice of the ruling, by abstaining from processing said data in such a way that after typing the complainant’s name the URLs quoted in the initial complaint no longer show up, and by having said details cancelled from its databases…although there is record from another case that Google Mexico has no such databases.

Google Mexico could not possibly (technically nor materially) comply with the foregoing; but  in addition to the above, IFAI found that Google Mexico did not comply with the complainants initial petition and carried on with the illegitimate processing of his personal data, so that there were grounds to initiate a sanctioning proceeding against Google Mexico, which the latter would appear may have ample chances of successfully challenging if it came to a fine being assessed against it.

As other privacy practitioners and commentators have remarked and underscored, this case bears an inextricable nexus with the aforementioned Costeja Case, so much so that IFAI itself quoted the ruling thereupon by the European Court of Justice (page 34 of the file). However, as the usual length for a blog entry has been exceeded by far herein, comments on that particular issue will be made tomorrow, in the next entry hereto.