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ISSUE 67 page 6

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ECJ springs surprise: ‘Right to be forgotten’ already exists

Since 2012 the EU has been working on a new data protection law to replace the current legislation that dates from 1995 (see issue 53). One of the key concepts of the proposal is the ‘right to be forgotten’ which Commissioner Reding said should enable individuals to wipe out personal data that they no longer wish to be publicly available. However a ruling from the European Court of Justice suggests that such a right already exists.

When Mario Costeja Gonzalez had a bit of financial trouble in 1998, which he resolved by the repossession of his house, the Spanish lawyer believed that that was the end of the matter. He was not best pleased when eleven years later the 36-word report of the sale in the electronic version of the La Vanguardia newspaper was still prominent in the results on the ubiquitous Google search engine. After being refused by both Google and the newspaper, Sr. Gonzalez contacted the Spanish data protection agency who ordered Google to remove their links; they made no order against La Vanguardia. The American company contested the decision on the grounds that it merely aggregated information on the web and did not control it.  The ECJ did not agree. It found that Google was a ‘controller’ of data, as specified by the 1995 directive, which retrieves, records, organises, stores and discloses information. If an individual requests that that their  personal data be removed Google must comply unless they can argue that ‘the role played by the data subject in public life’ justifies a ‘preponderant interest of the public’. The fact that Google is headquartered in California did not affect the judgment. The company reacted by posting an online form allowing EU citizens to to request that links to ‘inadequate, irrelevant or no longer relevant’ information be removed. In the course of the following 24 hours they received 12,000 requests.  According to Google adviser Professor Luciano Floridi the ruling marks the end of freely available information in Europe but Commissioner Reding believes that it is a ‘strong tailwind for the data protection reform that the European Commission proposed in January 2012’. Meanwhile Sr. Gonzalez is of the opinion that the decision will benefit the search engine as its results will be more relevant, ‘I am a fan of Google” he added.



Swiss ‘Catch-22’ compensation law likely to  be changed by asbestos ruling

Strike from 2010 could lead to prison sentence says Spanish court

The European Court of Human Rights (ECHR) has overturned the denial of compensation to the family of a Swiss man who died of mesothelioma in 2005. Hans Moor worked with asbestos in a machinery plant between 1965 and 1978 but, as in many other cases, the disease was latent for several decades, only being diagnosed in 2004. His wife and daughters pursued claims against both his employer and the Swiss national accident insurance fund. However the country’s courts dismissed the claim on the grounds of a ten-year time limit on compensation, running from the moment of exposure to the agent of the damage. The ECHR ruled that a blanket application of the time limit had deprived the claimants of their rightful access to the justice system thereby breaching the European Convention. Lawyers for asbestos victims in Switzerland believe the ruling should help them get the financial compensation that they have, so far, been denied..
A strike by air traffic controllers in Spain in 2010 has been ruled illegitimate and unprotected by any right. The ruling by a Madrid magistrate, which contradicts 21 other courts ruling in similar cases, exposes the strikers to a charge of sedition which carries a possible six years in prison. The industrial action, which was triggered by a government decree increasing working hours and reducing salaries by 30%, was a concerted campaign of ‘abandonment of posts of work’ according to Judge Francisco Javier Teijeiro. He added that 113 controllers and eight members of the board of the Controllers’ Trade Union (USCA) were likely to be tried.

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