With an evident and unfortunate confusion between the roles of ‘data controllers’ and ‘data processors’, (as analysed previously) the European Court of Justice (ECJ) qualifies, in its famous ruling, Google as data controller, while simply reproducing existing information.
This has far reaching implications and raises a number of complex and problematic issues. In this post, we will only be able to address some questions.
Indeed, to consider search engines services providers as data controllers for the purposes of EU law entails that they are obliged to respect the rights and freedoms of the data subjects, comply with a set of principles and obligations as foreseen in Directive 95/46, when they process personal data, and be prepared for liability in case of failure in behaving accordingly.
This obviously forces a shift in search engines services providers’ responsibilities regarding the individuals whose information they process.
A very pertinent and practical question must be asked: how can search engines services providers fulfil the obligations impending on controllers, as provided in Articles 6, 7 and 8 of the Directive, in relation to the personal data sourced from web pages hosted by third-party servers?
If an internet search engine service provider is to be considered a controller, it must guarantee that the processed personal data is adequate, relevant, and not excessive in relation to the purposes for which it was collected, up to date, and no longer than is necessary for the purposes for which the data were collected.
Considering that the search engine merely locates information made available by third parties, indexes it automatically and makes it accessible to internet users according to a particular order of preference, it remains to be explained how a search engine service provider will be able to appraise its compliance with those requirements. Isn’t the publisher of the website concerned in a better position to conduct that assessment?
As to the criteria concerning the legitimacy of processing of data made available on the internet, including personal data, in the absence of a data subject’s consent, it is unquestionable that internet search engine serve legitimate interests. Indeed, it allows an easy and quick access to information and contributes to the dissemination of the information uploaded on the internet.
But what happens when the search engine processes information that is inserted in a special category of data (e.g. personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and concerning health or sex life), which processing is prohibited, unless, for instance, data subject has given his explicit consent?
It is important to reflect on the hypothesis raised by the Advocate General, in its opinion:
if internet search engine service providers were considered as controllers of the personal data on third-party source web pages and if on any of these pages there would be ‘special categories of data’ referred to in Article 8 of the Directive (e.g. personal data revealing political opinions or religious beliefs or data concerning the health or sex life of individuals), the activity of the internet search engine service provider would automatically become illegal, when the stringent conditions laid down in that article for the processing of such data were not met.
Would the processing of special categories of data by search engines be deemed to be illegal if the requirements for the processing of such data on third-party source web pages were not met? Is that even a conceivable scenario?
Additionally, considering that, in order to be lawful, and if no other criterion is applicable, the processing of personal data must be carried out with the consent of the data subject, it is only legitimate to question how can search engines services providers ensure the consent from data subjects with whom they have never been in contact with?
Furthermore, one must wonder about the effectiveness of the exercise of the data subjects’ right to access to data, as foreseen in the above mentioned directive, and Google’s capabilities to satisfactorily comply with its obligation, attending to the fact that its activity of caching webpage’s for relevance index ranking depends on an algorithm that will perform the content analysis automatically. Attending to this notion of relevance, e.g., it will be impossible to distinguish in practice people who share the same name.
I guess we all just have to wait to see how all the implications will work in practice…