European Court Establishes “Right to be Forgotten” Online

(This was originally posted May 13, 2014 on CRS and the Law.)

Flag_of_Europe.svgToday’s decision by the European Court of Justice (ECJ) that individuals enjoy the right to have truthful yet unflattering information about them “forgotten” from online search results is generating a great deal of controversy in Europe and beyond. In a case brought by Spanish national Mario Costeja Gonzalez against Google demanding that the search giant remove results referring to a years-old newspaper notice of a tax auction of his property, the European Union’s highest judicial body held that an individual’s privacy rights:

override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in finding that information upon a search relating to the data subject’s name. However, that would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of inclusion in the list of results, access to the information in question.

Even though Mr. Costeja did not succeed in getting the newspaper on whose website the auction notice appeared to remove the content that was eventually indexed by Google, the ECJ noted that:

Given the ease with which information published on a website can be replicated on other sites and the fact that the persons responsible for its publication are not always subject to European Union legislation, effective and complete protection of data users could not be achieved if the latter had to obtain first or in parallel the erasure of the information relating to them from the publishers of websites.

It is now up to the Spanish court to decide whether there is a compelling public interest in the information regarding the tax auction of Mr. Costeja’s property 16 years ago that outweighs his “right to be forgotten.” (In an ironic twist, one could well argue that there is now a significant public interest in being able to find the auction notice via Google in light of the document’s importance in this seminal privacy case.)

Meanwhile, the ECJ’s decision is garnering decidedly mixed reviews from the human rights community. Privacy advocates are lauding the ruling as a major victory, while proponents of free expression and access to information are concerned about the impact of the Court’s ruling on these important rights. Points of view from all sides of this debate can be found here, here, and here.

Short of shuttering their operations in the European Union, it now seems that Google, Microsoft, Yahoo!, and other search engine operators will have to begin removing links to web content about individuals that is truthful yet “inadequate,” “irrelevant’, “excessive”, or simply dated pursuant to requests made under Article 12(b) of the 1995 European Data Directive. The European Court’s decision is limited to results from searches on the individual’s name, but today’s decision does not provide any guidance on dealing with searches that include other keywords in addition to a name (such as “Costeja Gonzalez auction”), or on the rights of individuals whose names are not unique (such as “John Smith”) to suppress unflattering results tied to someone else who shares their name.

Proponents of free expression on the internet can take some solace in the fact that national courts and data supervisory authorities maintain oversight of the process to suppress search results under Article 12(b) of the Data Directive. This provides some protection against the rampant abuses that have plagued the “notice and takedown” regime established by the U.S. Digital Millennium Copyright Act, under which rights holders can demand that online service providers remove content they believe to violate their copyrights without any judicial scrutiny. Even so, the inevitable consequence of today’s ruling is to move the world further along a path where what one can find online depends on where one is searching from.

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