Posted by Tara Taubman-Bassirian on March 18, 2015.
The Right To Be Forgotten and the balance of Privacy and Freedom of Speech.
A Spanish Court asked the European Court of justice to decide whether there was a legitimate grant for an individual to request from the Search Engine Google to take down a reference to a past information creating a damageable reputation for him.
In its landmark decision Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González of 13th May 2014, the Court of Justice of the European Union (CJEU) holds that:
1 – a search engine processes personal data;
2 – the search engine is a controller because it determines the purposes and means of the processing;
3 – when the processing is carried out by a corporation located in the EU, the directive applies;
What are the facts?
A newspaper was asked to publish a notice of auction in respect of the property of Mario Costeja González. The auction did not go through as he paid his debt. Google searches continued to point to the newspaper advertisement. The Spanish court did not order for the newspaper archive to be removed. It brought an action to require Google to suppress these results. Google appealed to the ‘Audiencia Nacional‘ (National High Court) which referred to the ECJ to clarify the situation with regard to the Data Protection Directive.
What are the implications of this decision?
Despite the public reaction, the ECJ did not ask Google to delete the information itself. What was ruled is that in some circumstances, when an information could cause harm to one’s reputation, Google would have the duty to DELINK or remove the information from its search results. The right to be forgotten does not involve content censorship. The information remains on the website. All that is required from Google is to no longer POINT to that content.
For many years, communications were geographically, temporally, and economically limited. With the development of mass communication and the internet, the volume and spread of information dramatically increased. Any uploaded information is broadcasted at no cost to the World Wide Web, and for ever. Prior to this digital era, individuals could either forgive, excuse, forget. If persistently mis-judged, victims could leave their small village for further and more clement destinations to resettle. With the internet amplifying the best and the worst, forgetting and resettling to start from scratch became quasi impossible.
No more chance to move on from the haunting past. The mass of information collected, disseminated at a large scale is out there for anyone to steer at.
At the same time, there is a whole new generation of young people born with the internet, broadcasting every move of their lives to the digital world. (see Bruce Schneier’s book ‘Data and Goliath’ here reviewed by Ben Rothke.
Where is the right to be forgotten? No redemption?
The pre-internet natural balance is broken. The approximation of the human memory that ‘deletes’ the information could be restored for perpetuity.
This right to blur the past with the right to delink should restore the balance.
How does this work?
So far the ECJ decision applies to Google which benefits from a quasi monopolistic position in the search engine market. We can expect the ruling to develop to other search engines and social media aggregating content such as Facebook. Google had initially to deal with more than 200.000 requests. Google set up an advisory council of eight independent experts and two Google executives in order to determine the criteria to implement the “right to be forgotten”. Following the EU data protection Authority Working Party article 29 recommendation This advisory council delivered its report.
Today, Google is said to be dealing with the requests in real time.
Does this mean anyone having interest to wipe its past could action Google? The answer is no.
What are the criteria set by the ECJ?
There are limits to the right to be forgotten. A balance must be struck between the individual’s rights to privacy and data protection (protected by Articles 7 and 8 of the EU Charter of Fundamental Rights), the legitimate public interest to access the information about the individual, the economic interest of the search engine and any other relevant rights and interests. In order to have an information removed in Google search, the information needs to be:
These limits are to be combined with previous criteria set by the European Court of Human Rights in the Von Hanover case:
the right to privacy has to give away to the public interest of information.
Is this specifically a European right ?
In principle yes, although there is a debate to extend the decision to google.com and eventually to open a debate for a right to be forgotten outside the EU.
Two Dutch decisions have ruled against the Right to be forgotten.
What will be the spread of the right to be forgotten?
The right to be forgotten has been similarly applied in Japan.
A recent TV debate on IQ2, opposed two pairs of experts composed on one side by Paul Nemitz, Dir. of Fundamental Rights & Citizenship, DG Justice & Consumers, EU Commission and Eric Posner, Professor of Law, University of Chicago, defending the right to be forgotten and on the other side, Jonathan Zittrain, Professor, Harvard Law & Co-Founder, Berkman Center for Internet & Society, and Andrew MacLaughlin, CEO, Digg and Instapaper & Fmr. Dir. of Global Public Policy, Google. The debate, was typically run as a US media show. Ultimately the public voted against the motion of having a Right to be forgotten in the US.
There was an acceptance by Jonathan Zittrain that something has to be done but not in that way. He argued that allowing a private corporation to take the decision to remove access to the information was too arbitrary. Once Google starts handpicking results, he said, all of the great things the digital revolution brings are gone with the bad things. Jonathan Zittrain is particularly concerned about the actual website not being advised of the removal of the link.
Andrew MacLaughlin erroneously invoked the issue of censorship of free speech, arguing that such a right to control was prone to abuse. He was reminded that the information itself was not removed. Andrew claimed the right to remember was more important. He assumed the right to be forgotten would be used by famous wealthy individuals. He forgot they are e-reputation agencies for these ones to push back their search results. Paul Nemitz reminded that in the case of celebrities, the public interest would oppose the right to be forgotten. So far, all requests have concerned ordinary people.
Paul Nemitz reassured that this right to be forgotten was not discretionary. In the digital era with the progress of technology, it is important for the future, for individuals, to have their destiny in their own hands.
Inevitably, both parties referred to Georges Orwell “He who controls the past, controls the future“. The question that remains is who is ‘he’ ?
The public voted against the motion of having a right to forgotten in the US.