On the right to be forgotten and the right to remember

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Earlier this year the Court of Justice of the European Union (CJEU) decided the case of Google Spain v Costeja González, which established the so-called right to be forgotten (RTBF), which can be more accurately described as a data subject’s right to remove links to inaccurate and potentially harmful information from search engine results. At the time, some people feared that the right would be misused by undeserving people to remove information about them online.

We now have a much better idea of what type of requests Google and other search engines are receiving thanks to a transparency report from Google on the application of the right to be forgotten. The picture that emerges from the report is that, in balance, Google appears to be getting the application of the ruling mostly right, denying some seemingly inappropriate and/or ineligible requests, such as criminals attempting to remove reference to news reports of their convictions; while it has been granting some ostensibly sensible requests, such as mentions of rape victims.

Following that development, Google has gone on the offensive in their effort to cast doubts about the viability of the RTBF by organising a panel on the subject. In that gathering David Jordan, the BBC’s head of editorial policy, highlighted a couple of cases in which BBC content had been removed from search engine results, including links to a report about the trial of two convicted Real IRA members. He then called for greater care for the public’s “right to remember”.

Here we have in a nutshell the arguments against the RTBF. Firstly, they highlight and publicise cases where links were removed undeservedly. Secondly, they make an argument on behalf of the public’s right to know, freedom of speech, or in this case, a non-existent right to remember. To analyse the validity of these arguments we need to understand what the ruling actually says, and how Google is removing links. The right to be forgotten mostly covers the type of information that is liable to affect significantly “the fundamental rights to privacy and to the protection of personal data”, and it specifically mentions that the court seeks to have a fair balance between those rights and the public’s right to access information. In other words, the decision does not give an unlimited right to remove anything that we do not like from the Web, it simply gives users the right to request the removal of links to search results which may seriously infringe a person’s privacy. In order to do so, Google has made available a search removal request form in which a subject may apply to exercise their rights within the European Union. At the moment it is entirely up to Google to decide whether such a request will be met, and if a user is denied the application then this could be litigated in court.

So Google, who also have the power to review the decision and deny the application, is directly responsible for existing unsuitable examples. One could even speculate that it is in Google’s best interest to allow some of these inappropriate recipients to get through the net, as they tend to call the Google Spain ruling into question. For clarity, I am not stating that this is what Google is doing, but one has to be suspicious as to why they allow such results to remain hidden even after third parties have highlighted their unsuitability. There is already an existing mechanism that helps to remove false positives, this is the notice and take down procedures for copyright infringing materials. Over the years, content has been removed in Google services such as YouTube due to mistaken or malicious removal requests, only to be restored once the affected party has complained.

Furthermore, the right to be forgotten need not be in conflict with the right to freedom of speech. A court in the Netherlands has used Google Spain to deny a request to remove links to potentially damaging information. The plea came from the owner of an escort agency who was convicted for attempted incitement of arranging a contract killing, a matter that is currently under appeal. The subject wanted links to the reports of the crime removed from search results, but the Dutch court refused the request with a very interesting analysis of the interaction between privacy and freedom of expression. The court commented that the Google Spain ruling did not intend to protect individuals against all negative communications on the Internet, and that any demand to have links removed would have to balance the existing freedom of speech rights with the right to privacy.

Concluding, it is still too early to analyse the full effect of the CJEU ruling against Google, but I remain unconvinced by some of the examples presented against the right to be forgotten. On the contrary, the leaking of naked celebrity pictures, and the rapidity with which these were removed from search engine results around the world, help to remind us that there are good reasons why in some occasions we may want to have links to damaging content online. The Google Spain ruling gives the average person some rights that so far have been enjoyed mostly by celebrities.