What is the legal status of search engines, which are indispensable tools for searching for information on the Internet? This is one of the complex questions that the Court of Justice of the European Union (CJEU) will have to answer in 2013. For the purposes of this article, we shall use “search engines” to refer to services which automatically index webpages using a computer program, called a spider or robot, and, upon a user request, provide the results in the form of a list of links to the Internet sites identified.

The case which leads to this question is one between a Mr. Costeja and Google. Costeja noticed that when his name was typed into Google's search engine, two results redirected to pages of a newspaper which mentioned the auctioning of a property seized as a result of a failure to pay social contributions. Costeja took legal action against the newspaper and Google before the Spanish Data Protection Authority. The authority denied Costeja’s claim against the newspaper, stating that the publication was legal and benefited from the protection of the right to information. However, the authority granted his claim against Google and ordered it to remove the links from its results page.

This case is symptomatic of a burgeoning trend in Europe transforming regulations on data protection into an instrument used for removing information thought unfavourable or unsuitable by the data subjects. These claims, which assume the existence of the “right to be forgotten,” are often aimed more at the search engines which have indexed the disputed content than at the website containing the content. Search engines are therefore progressively being asked to take on duties that they did not originally have: the duty to regulate Internet content and a duty to respond to people’s claims even if the disputed content is merely disparaging or controversial, rather than illegal. Search engines are therefore caught between several legal grounds that are difficult to reconcile: data protection, right to privacy and freedom of speech.

The first question the CJEU will have to answer will be whether a search engine processes personal data as such. Indeed, a search engine is a program which indiscriminately indexes all content on the web; e.g. images or text—including names, places or personal data. In order to be able to answer this question in the affirmative, one must therefore be able to differentiate between the type of data indexed, which is difficult. This does, however, appear to be the path chosen by the Group of the European Data Protection Authorities, which distinguished, in an opinion dated 2008, between the search engines’ various activities in order to be able to determine whether personal data were processed and whether there was a data controller.

If the CJEU finds that search engines process personal data, it will then have to answer a second question: Are they the “controllers” of the processing within the meaning of the 1995 Directive on the protection of personal data? The controller is the party who “determines the purposes and means of the personal data processing.”

In light of this definition, publishers are the controllers of the content they publish. But, by indexing content that these authors publish, which it does not control, does the search engine also become a controller? Several authorities and courts have attempted to answer this question.

Hence, in its 2008 opinion, the Group of the European Data Protection Authorities considered that, in the context of the search and indexing activity only, the “main controllers are the information providers,” search engines being qualified as “intermediaries.” The term “intermediary” is interesting because it reflects the functional reality of search engines, though the term is not defined in the directive.

Certain French courts have said that a search engine can be a controller and, in so doing, have used an analysis that is similar to that of the Spanish authority. An example is a case of the Montpellier Court of Appeal, which, on September 29, 2011, ruled, under summary proceedings; i.e., without any debate on the merits, that Google was a data controller, granting a request that it "de-index" certain Internet pages. This case involved an individual who had participated in certain video scenes that were accessible through a search using the name of this person.

Other courts have shown themselves to be more conservative. For example, the Paris Civil Court (Tribunal de Grande Instance or TGI) has ruled that Google should remove links from its results page, but it did so relying on the liability regime created for Internet intermediaries and, more specifically, the “hosting intermediary” regime set out in the 2004 Act for Trust in the Digital Economy. This act provides that a technical intermediary responsible for the storage of content "controls" the content it hosts only if, once it is informed that the content is in dispute or illegal, the host does not take prompt action to remove it, thereby causing a manifestly illegal disturbance. In addition, it was the lack of control on the indexed content which led the court to consider the search engine as a host and not a “data controller.”

The fact that the court ruled out this idea is interesting: This means that people’s rights, and respect for their privacy and reputation, can be protected without requiring the presence of a “data controller.”

Other courts have shown themselves to be more audacious in response to claims. On October 12, 2009, the Paris TGI ruled out enforcement of the 1995 Directive against a search engine, stating that it could harm freedom of speech by allowing people to oppose distribution of content on the Internet.

As we can see, there is a debate as to the question of the legal status of search engines. The CJEU could put an end to this debate, unless its decision opens up another, more practical debate. Indeed, if the CJEU rules that search engines are data controllers, how will the entire legal regime and the obligations resulting therefrom be applied to them? How will search engines be able to allow data subjects to exercise their right of opposition, updating and correction of their data even though the search engines do not originally publish the data? How can visibility of online press articles be reconciled with an individual’s request for the removal thereof from the results of search engines?

Written By

Yann Padova

Written By

Denise Lebeau-Marianna, CIPP/E


If you want to comment on this post, you need to login.


Board of Directors

See the esteemed group of leaders shaping the future of the IAPP.

Contact Us

Need someone to talk to? We’re here for you.

IAPP Staff

Looking for someone specific? Visit the staff directory.

Learn more about the IAPP»

Daily Dashboard

The day’s top stories from around the world

Privacy Perspectives

Where the real conversations in privacy happen

The Privacy Advisor

Original reporting and feature articles on the latest privacy developments

Privacy Tracker

Alerts and legal analysis of legislative trends

Privacy Tech

Exploring the technology of privacy

Canada Dashboard Digest

A roundup of the top Canadian privacy news

Europe Data Protection Digest

A roundup of the top European data protection news

Asia-Pacific Dashboard Digest

A roundup of the top privacy news from the Asia-Pacific region

IAPP Westin Research Center

Original works. Groundbreaking research. Emerging scholars.

Advertise in IAPP Publications

Find out how to get your message in front the people you want to reach. Download a media kit now.

Get more News »

Find a KnowledgeNet Chapter Near You

Network and talk privacy at IAPP KnowledgeNet meetings, taking place worldwide.

Women Leading Privacy

Events, volunteer opportunities and more designed to help you give and get career support and expand your network.

IAPP Job Board

Looking for a new challenge, or need to hire your next privacy pro? The IAPP Job Board is the answer.

Join the Privacy List

Have ideas? Need advice? Subscribe to the Privacy List. It’s crowdsourcing, with an exceptional crowd.

Find more ways to Connect »

Find a Privacy Training Class

Two-day privacy training classes are held around the world. See the complete schedule now.

Online Privacy Training

Build your knowledge. The privacy know-how you need is just a click away.

The Training Post—Can’t-Miss Training Updates

Subscribe now to get the latest alerts on training opportunities around the world.

New Web Conferences Added!

See our list of upcoming web conferences. Just log on, listen in and learn!

Train Your Staff

Get your team up to speed on privacy by bringing IAPP training to your organization.

Learn more »

CIPP Certification

The global standard for the go-to person for privacy laws, regulations and frameworks

CIPM Certification

The first and only privacy certification for professionals who manage day-to-day operations

CIPT Certification

The industry benchmark for IT professionals worldwide to validate their knowledge of privacy requirements

Certify Your Staff

Find out how you can bring the world’s only globally recognized privacy certification to a group in your organization.

Learn more about IAPP certification »

Get Close-up

Looking for tools and info on a hot topic? Our close-up pages organize it for you in one easy-to-find place.

Where's Your DPA?

Our interactive DPA locator helps you find data protection authorities and summary of law by country.

IAPP Westin Research Center

See the latest original research from the IAPP Westin fellows.

Looking for Certification Study Resources?

Find out what you need to prepare for your exams

More Resources »

GDPR Comprehensive: Registration Open

New! Intensive two-day GDPR training led by the sharpest minds in the field. It's a can't-miss event.

The Congress Is Cancelled

The IAPP Europe Data Protection Congress 2015 is cancelled. Click through to learn more.

Sponsor an Event

Increase visibility for your organization—check out sponsorship opportunities today.

Exhibit at an Event

Put your brand in front of the largest gatherings of privacy pros in the world. Learn more.

More Conferences »

Become a Member

Start taking advantage of the many IAPP member benefits today

Corporate Members

See our list of high-profile corporate members—and find out why you should become one, too

Renew Your Membership

Don’t miss out for a minute—continue accessing your benefits

Join the IAPP»