The right to be forgotten on the internet

The Court of Justice of the European Union (CJEU) ruling of May 13, 2014 requires Google to comply with the requests of European Union citizens who wish to remove any link to documents that are “irrelevant, outdated or otherwise objectionable.” This ruling and its repercussions have put the topic of e-reputation back at the forefront of the international stage, notably with extensive coverage by the mainstream international press.

Since the CJEU decision, Google reportedly receives an average of 1,000 removal requests per day, and is considering hiring or reassigning employees to handle such volume.

The right to be forgotten: the origin of the case

In 2010, a Spanish individual, Mario Gonzalez Costeja, filed a complaint with the AEPD (Spain’s equivalent of the CNIL) to obtain not only the removal (or anonymization) of legal notices (relating to a property foreclosure that had been settled for years) published on the website of a daily newspaper, but also their de-indexing from the Google search engine.

• The AEPD rejected the request made against the Spanish newspaper and ordered Google to remove the links to the pages in question on the grounds that this indexing infringed the fundamental right to data protection and human dignity in the broad sense.
• Google filed an appeal with the Spanish court, which referred the matter to the CJEU to determine whether Google could indeed be ordered to remove the disputed hyperlinks, on the basis of Directive 95/46/EC of October 24, 1995 on the protection of individuals with regard to personal data.
• The CJEU ruling requires Google and other search engines to remove data from results predating the request of any member of the European public.

The right to be forgotten: decoding it

Since the Court considers that the activity of search engines constitutes the processing of personal data, it is necessary to strike a balance between internet users’ right to information and the fundamental rights (respect for private life and personal data, in particular) of the individuals whose data is processed by the search engine. But this also raises questions:

• the application of the right to be forgotten (or the right to erasure) on the internet: In certain cases, search engines have to make choices and decide whether or not a request is justified, and whether or not the de-listing of a link does not harm internet users’ access to information. To this end, Google has set up a committee made up of 10 experts (Eric Schmidt, chairman of Google’s board of directors, David Drummond, senior vice president and chief legal officer at Google, as well as people external to Google).
• freedom of the press: The founder of Wikipedia, who is the most outspoken on the matter, considers that “censoring Google means censoring the press.” This position should be put into perspective, given that the very essence of the right to be forgotten on the internet is the protection of the individual and their private life in the digital sphere, and it is not intended to muzzle the press. Indeed, one might ask what proportion of removals target press websites.

The right to be forgotten: What was Google’s reaction following the CJEU decision?

On May 29, 2014, Google set up a form to facilitate and channel requests from individuals. Requests are obviously not processed instantly, since Google has to review them one by one. In particular, it has to arbitrate between a person’s right to privacy and the public’s interest in the information. To this end, it has reportedly already hired experts. Requests currently concern the removal of nearly 300,000 links. France, Germany, and the United Kingdom make up the top three in terms of removal requests received by Google.

The right to be forgotten on the internet: What about other search engines?

Other search engines, like e-reputation players, are providing their own solutions:

• MICROSOFT published, a few weeks after Google, its form for requesting the removal of search results on Bing under European regulations. The form asks internet users who want a search result removed whether they play any role in an association, company, or public body mentioned in the page to be censored, whether they are a “public figure,” and the reasons why they want these results censored.
• YAHOO is reportedly also developing a solution for its users.

The right to be forgotten: What do non-European countries plan to do?

Outside the European Community, the debate over the right to be forgotten on the internet is heating up around the world, with notable interest in North America:

• CANADA: Some lawyers do not believe that this European Court decision can apply under Canadian law, because the Charter of Rights and Freedoms guarantees freedom of expression but not the right to be forgotten. Allen Mendelsohn, a Montreal lawyer, compares the European decision to penalizing a librarian for the content of a controversial book. He believes that “Canada is unlikely to adopt a right-to-be-forgotten law because Canadian legislators have recognized the difference between publishing an article and linking to it.” In 2011, the Supreme Court issued a decision that absolves websites of legal liability for hyperlinks to defamatory content. The Court recognized that “the link was not responsible for the defamation that was at the other end of that link.”
• HONG KONG: Commissioner Allan Chiang Yam-wang calls for a balance between the right to be forgotten and the public’s right to information. “As a responsible company, Google should also be aware of removal requests from other regions of the world in order to meet their privacy expectations,” he says. “We must give a second chance in life to these people who are victims of the internet. But it is not about rewriting history. Mr. Chiang wants a non-legal approach to dealing with the issue.

The right to be forgotten: What is the future of the right to be forgotten?

We are still in the early days of the right to be forgotten on the internet. We will have to wait for the best-known search engines to become operational in order to handle requests optimally and in a uniform manner. As Europe is a pioneer in the field of the right to be forgotten, it will need to demonstrate cohesion among its member states to inspire other countries to adopt this new form of internet legislation.

On a more personal level, it should above all encourage everyone to better manage their right to privacy as well as their personal data. In the age of big data, this seems indispensable.