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Monday, 20 June 2016 15:46

The right to be forgotten after the EU regulation

The judgments of the Board of Administrative Litigation of TS (Case no. 1381 and 1387/2016, both of 13 June 2016 and the presentation made by Judge Mr. Herrero Pina) confirm the need to perform the procedure for exercise of the right to be forgotten after the publication of the new European data protection Regulation (Regulation (EU) 2016/679 of 27 April 2016).

According to this ruling, "within the scope of this administrative jurisdiction, the protection of the rights of opposition, access, rectification and cancellation recognized the holder of personal data processed, it is collected by challenging the corresponding resolution Spanish data Protection Agency".

This process begins calling or communicating the data controller, to exercise the corresponding right (art. 25 RD 1720/2007), the applicant may make a complaint to the AGPD Spanish Data Protection Agency (art. 117 RD 1720/2007), which must issue a decision within a maximum period of six months, which may be lodged administrative appeal (art. 18 Law 15/1999)".

The Supreme Court notes that the arguments already contained in previous statements March 11 (resources 643/2015 and 1482/2015), March 14 (1078/2015 and 1380/2015 resources) and March 15, 2016 (resource 804/2015), the content of the new EU Regulation 2016/679 of 27 April 2016 on data protection of individuals, which confirms the reasoning of those judgments is also added.

First, the Chamber reiterates its jurisprudence on Google Inc, and not Google Spain, as data controller.

So consider the interpretation is Google Inc who determines the purposes and measured the data processing without Google Spain is a participant, as their functions are limited to promoting the Spanish market selling advertising spaces that are generated in the search . It is therefore to Google Inc who required the adoption of these measures necessary to implement the right to oblivion.

In addition, according to art. 26 of the new Regulation of the European Union, can not be considered to Google Spain as co-responsible for the data processing.

This article regulates "the responsibility in data processing, jointly responsible to jointly determine the objectives and means of processing, requiring further that stewards determined in a transparent manner and by mutual agreement their respective responsibilities for the performance of obligations considering imposed by the Regulation, in particular regarding the exercise of the rights of the person concerned ". Therefore "consider jointly responsible prevents an entity as Google Spain, SL, which has no involvement in the management of search engine and determining the purposes and means of processing, a fact that at no time questioned".

Obligations arising to exercise the right to oblivion

These obligations of the right it is understood that, in accordance with art. 17 of the Regulation correspond to the controller, ie, to Google Inc.
With the above, it is that "the applicant is entitled to obtain without undue delay of the controller the erasure of personal data relating to him, which is required to suppress".

Therefore in this case, it is the data controller (Google Inc) that should be required obligations under the exercise of the right to oblivion and the corresponding adoption of appropriate measures for treatment.

Noticias Judiciales