Spain: The right to be forgotten, again.

When it comes to privacy, Spain has a very special connection with the right to be forgotten. After all, the epic battles in the administrative and judicial struggle started in Spain between Facebook and Mr Mario Costeja played a significant role in shaping what is now the erasure right enshrined in the GDPR and several other features of the EU laws on this point. After the decision of the EU Court of Justice and the entry into force of GDPR and the Spanish Fundamental Act developing it, this should have been a settled question. Not in Spain.

The Spanish Supreme Court released by the beginning of December 2020 a new decision in which its judges challenged the Spanish Data Protection Commissioner, the Audiencia Nacional Court in charge of reviewing the Commissioner’s decisions and Microsoft Corporation search engine Bing. The controversy under review was simple. A businessman wanted some adverse contents on him to be out of reach when searched using Bing. Bing agreed to that petition when searches were conducted using together the given names and surnames of the businessman but objected when just the surnames were involved. Bing’s claim was a fair one. Surnames do repeat often, even when two surnames are combined, as it the standard practice in Spain. Blocking those searches could leave out from a search results that had no connection at all with one data subject in particular. The Commissioner and the Audiencia Nacional Court sided along Microsoft but the Spanish Supreme Court took finally the opposite view. In its interpretation, this would be an excessive restriction of the right to be forgotten and could also create lack of uniformity across the EU. Since under Spanish law two decisions in the same direction are necessary to confirm a doctrine, there is still room for the Spanish Supreme Court to think twice, however.