Is providing links to content a breach of privacy in itself

Google has been in litigation with the Spanish data protection authorities over a claim that the search engine was violating privacy.

The key question is whether in providing a link to an online article by a newspaper (or any other third party) the person publishing the link (in this case Google) is violating privacy if the story to which it is linking contains material that could be deemed to violate privacy.

The case that has brought this about is a bit unusual in that the Spanish authorities were not able (under their existing laws) to prevent their own newspapers from publishing content that breached privacy or data protection so they were targeting Google for having - as an aggregator and search engine - linked to the content.

As Google has rightly countered, it is not responsible for the actual content but is merely linking to it - so the question arises as to whether publishing a link amounts to republishing the actual story.

The issue has escalated in Spain where a number of complaints reached court and it raises the interesting point in relation to how technology now preserves articles and keeps them available. In the past something objectionable might have been printed in a paper but it would not have been captured and published online and remain there. So even where someone might accept that a story has been run about them is it right that the story is still available for the pubic to read one or two years down the line?

Mediabeak suggests that ultimately if the link is still available - i.e. the relevant publication that originated the story is still carrying the story and keeping the link to it live online then it is responsible as the primary publisher and Google, in making available the link, is merely linkning to what is out there rather than creating or continuing to make it available.

The problem for Spain and other countries in this context is deciding how to address the issue - in criminal law there is the principle of 'spent' convictions - i.e. depending on the crime, after a certain time the conviction is deemed to be 'spent' such that it can no longer be referred to or used against an individual - so what this case highlights is that there may be a sense among the public (and certainly celebrities and others) that to the extent they may have done something worthy of a media feature (be it sex, drugs etc) they should be entitled for that not to be readily retrievable via an internet search. In the context of the internet and online media this is a big ASK and not necessarily a reasonable one.

Mediabeak thinks the position should be that where there is a legitimate complaint in relation to online coverage then the legal mechanisms exist to force a publisher to take the objectionable content down from their site. If they do this then Google or anyone else cannot link to it. So there is existing legal process in most countries to deal with this without trying to compensate for loopholes in the law by seeking to impose sanctions on search engines.

Spain has now referred the case to the European Court of Justice for guidance - hopefully they will come back with a sensible solution.

More on this from MediaGuardian

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