EU Right to Be Forgotten Ruling Sets Wheels in Motion

23 May 2014

The implications of the European Court of Justice ruling on the “right to be forgotten” are being widely discussed, with much uncertain about its practical ramifications, including for accurate public information.

In early June, EU data protection authorities are expected to convene to discuss adopting a consistent approach across Europe. Google has been in contact with data protection officials, Bloomberg reported.

“Google said that the company would release an online tool to remove personal information, Arne Gerhard, a spokesman for privacy officials in Hamburg, Germany, said in a phone interview,” according to a Bloomberg story. Google, which immediately began to receive take-down requests, called the ruling “disappointing,’ but has not issued a detailed reaction.

“This judgement was only made last week, and the companies will need some time to work out how they’re going to handle this,” wrote United Kingdom deputy commissioner and director of data protection David Smith. Services face a “logistical and technical” challenge, he said in a blog post generally favorable to the ruling.

“We won’t be ruling on any complaints until the search providers have had a reasonable time to put their systems in place and start considering requests. After that, we’ll be focusing on concerns linked to clear evidence of damage and distress to individuals.”

Smith also said, “We believe the judgement provides space to strike a balance between the right to privacy and the public’s right to know, recognising the role search engines play in facilitating access to information in today’s society.”

Wikipedia founder Jimmy Wales called the ruling “astonishing.” The Index on Censorship said the court’s ruling “should send chills down the spine of everyone in the European Union who believes in the crucial importance of free expression and freedom of information,” according to an article in The Guardian.

EU justice commissioner, Viviane Reding, said in a post on Facebook, “The ruling confirms the need to bring today’s data protection rules from the ‘digital stone age’ into today’s modern computing world.”

Rufus Pollock, founder and co-Director of the Open Knowledge Foundation, wrote:

This is potentially a significant change, adding to the work and responsibilities not just of big corporations like Google, but also to the creators of open databases big and small. The so-called “right to be forgotten” undoubtedly encapsulates a justified fear that lots of us have about our loss of personal privacy. However, this decision shows some potential unintended negative consequences for the publication and availability of key public interest information that is central to government and corporate accountability.

Balancing Test

The court ordered Google to remove links that are deemed “inadequate, irrelevant or no longer relevant,” but the ruling includes a balancing test that recognizes “the interest of the public in having that information.”

“What this is not, then, is a full or absolute ‘right to be forgotten’,” commented Smith.

The ruling says:

However, inasmuch as the removal of links from the list of results could, depending on the information at issue, have effects upon the legitimate interest of internet users potentially interested in having access to that information, in situations such as that at issue in the main proceedings a fair balance should be sought in particular between that interest and the data subject’s fundamental rights under Articles 7 and 8 of the Charter. Whilst it is true that the data subject’s rights protected by those articles also override, as a general rule, that interest of internet users, that balance may however depend, in specific cases, on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life.

The 2010 complaint by Mario Costeja González, lodged with the Agencia Española de Protección de Datos (Spanish Data Protection Agency, the AEPD) a complaint against the newspaper La Vanguardia Ediciones SL. Costeja González said Google searches on his name display links to two pages of La Vanguardia’s newspaper containing an announcement for a real-estate auction organized following attachment proceedings for the recovery of social security debts owed by Costeja González.

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