The implications for online publishers

United Kingdom

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

The judgment plainly is likely to be of very great significance to European search engines. The question many others will be asking, however, is the extent to which it will also affect other providers of content on the Internet such as online publishers. Newspapers in particular very often maintain extensive archives. Could these now be subject to a legal requirement to surgically remove personal data, particularly old personal data?

The judgment made it clear that privacy rights have to be balanced with other rights, such as the right to freedom of expression. The trouble for Google is that as the Court saw it, its only countervailing right was its own commercial interest, on which the Court gave as little weight as it did to the rights of users of Google's search service.

With newspapers and other online publishers, the position may be different. With daily news and other published content the competing right to freedom of expression is much stronger, as has been repeatedly emphasised by the European Court of Human Rights. The Strasbourg court has a longer track record in this area than its CJEU counterpart in Luxembourg; something to which the CJEU will pay considerable regard when determining the balance between privacy and other rights.

Newspaper archives could perhaps be said to be more similar to Google's search service than the daily news. However, newspapers' archives have always been widely seen as an important matter of public record and the arguments supporting them are very strong in a way which simply does not apply to Google. Moreover, the CJEU found that there was something particularly invasive in the way Google collated information relating to individuals from across the web. That does not apply in any way the same degree in respect of newspaper archives.

Nonetheless, the debate may in time turn to the propriety of the continued availability of old personal data in online newspaper archives. Even if this question is ultimately decided by a court (most obviously the CJEU), such judicial decisions are rarely made in a vacuum. For this reason, media publishers wishing to retain the online availability of online archives of their material would be sensible to start a public debate making the case for such archives.