POSTED BY Bridget Sarpu
The “right to be forgotten” is a concept that has been discussed heavily in the European Union (EU). Recently, the privacy right is a hot topic and tackles the issue of whether an individual has the right to request that his or her personal data be removed from accessibility via a search engine. Companies, like Google, have extreme concern over this law because they believe that the ruling hurts the right to information by allowing individuals to remove some results from Web searches for their names. Within the past month, Google has embarked on a seven-city tour of European capitals to examine Europe’s “right to be forgotten” and its overall impact on the world’s right to information, history, and privacy.
The series of meetings began early in September in Madrid and will continue for the next two months. The European Court administered the ruling regarding the right to be forgotten May 13, 2014. It all started in 2010, when a Spanish citizen lodged complaints against a Spanish newspaper, Google Spain and Google Inc. with the national Data Protection Agency. The citizen complained that an auction notice of his repossessed home on Google’s search results infringed his privacy rights because the proceedings concerning him had been fully resolved for a number of years and thus the mere reference was irrelevant. First, the citizen requested that the newspaper be required either to remove or alter the pages in question so that the personal data relating to him no longer appeared. Second, he wanted Google Spain or Google Inc. to be required to remove the personal data relating to him so that when a third party searched the citizen’s name, the repossession proceedings would no longer appear in the search results.
The Spanish Court immediately referred the case to the Court of Justice of the European Union questioned whether EU’s 1995 Data Protection Directive applied to search engines such as Google; whether EU law applied to Google Spain, given that the company’s data processing server is in the United States; whether an individual has the right to request that his or her personal data be removed from accessibility via a search engine (the “right to be forgotten”).
Overall, the spring ruling stated three main points: 1) Even if a physical server of a company processing date is located outside of Europe, EU rules apply to search engine operators if they have a branch or a subsidiary in a “Member State” which promotes the selling of advertising space offered by the search engine; 2) Search engines are controllers of personal data. Google can therefore not escape its responsibilities before European law when handling personal data by saying it is a search engine. EU data protection law applies and so does the right to be forgotten; 3) All individuals have the right—under certain conditions—to ask search engines to remove links with personal information about them. This applies where the information is inaccurate, inadequate, irrelevant, or excessive for the purposes of the data processing.
Since the surprising decision, Google has tried to abide by and apply the new rule. However, Google expressly disagrees with the ruling and therefore assembled a team of experts to debate the ruling across Europe. According to Google Executive Chairman, Eric Schmidt, there needs to be a balance between the right of information and an individual’s right to privacy. Google claims that it has received over 120,00 requests from across Europe to remove from its search results everything from serious criminal records, embarrassing photos and negative press stories. Google believes that some individuals are using this as an opportunity to try and hide from their past on the Internet. Furthermore, there is a very thin line between a personal right to be forgotten and the world’s right to information.
The requirement that Google should take down links just because some person does not want them to show up when their named is searched could be considered a type of censorship. Google Inc.’s strong opposition for taking down information has resulted in the Company rejecting a lot of the requests. Another response tactic has been to notify sites that they have been delinked by a request. For example, Google sent out the following removal notice to BBC: “Notice of removal from Google Search: we regret to inform you that we are no longer able to show the following pages from your website in response to certain searches on European versions of Google.” The story in question that was delinked only mentions one person: Merrill Lynch Chief Stan O’Neal who was fired after losing huge amount of money. It was clear that Stan O’Neal wanted the link to be taken down and ultimately the story covered up. This caused another outrage amongst bot privacy advocates and free speech advocates. On one hand, privacy advocates believe that removal of links simply allow people to limit the visibility of some personal information. Free speech advocates believe the removal of information will lead to a whitewashing of the past.
In response to Google’s tour through Europe and the controversy behind removal of stories, European regulators have decided to construct guidelines for appeals from people whose requests to remove information from searches has been rejected by the search engines such as Google. The guidelines are expected to be finalized by the end of November and they will set out categories to organize types of appeals coming in from citizens and help authorities weigh the public’s right to know the information with the individual’s right to privacy. Furthermore, the guidelines will help regulators determine whether the information should remain accessible under an individual’s name by weighing certain factors like the public role of the person, whether the information relates to a crime, and how old the information is. Hopefully, European regulators and information gatherers like Google can reach a healthy compromise. However, every individual should remember that one can’t run away from your past, especially on the Internet. Everyone may have a secret they want to cover up but it should not mean as a society we should rely on censorship techniques or laws to hide that sensitive information.
Bio: Bridget Sarpu is the Editor-in-Chief of the Journal of High Technology. She is a 3rd Year Law Student at Suffolk University Law School with a concentration in in Intellectual Property. She holds a B.S. in Biology from Stonehill College and currently is a Law Clerk for Bay State IP, LLC.
