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The select committee on the European union inquiry on the right to be forgotten

29 July 2014

The 'right to be forgotten' has become a popular phrase since the European Court of Justice's ruling in the case against Google Spain and Google Inc. on 13 May 2014.

Commentary on the decision has been confused which has created a number of myths that we addressed in last month's newsletter. 

Recently, Simon Hughes, Justice and Civil Liberties Minister, faced questioning on the consequences of the ruling and the proposed general data protection regulation (the Regulation), by the House of Lords Home Affairs, Health and Education Sub-Committee on 9 July 2014.

Is there actually a 'right to be forgotten'?

There is no 'right to be forgotten' and the phrase is therefore inaccurate and misleading, which, as Mr Hughes suggests, may cause citizens to have unrealistic expectations.

Whilst citizens have a right to make a case to Google that URLs should be deleted from a search of their name, they have no right to have that request automatically complied with. 

Lord Wasserman asked Mr Hughes whether, if there is no right to be forgotten, there is an alternative right that needs protection.

Mr Hughes set out the right as follows: 

  1. the data subject has the first right, namely, that their rights will override both the economic interests of the search engine operator and the interests of internet users, however
  2. this right is qualified; the data subject has a right to have things that are inappropriate or inaccurate removed on the one hand, but the public have a right to make sure that they do not lose information that is in the public interest.

Essentially, Mr Hughes set out the balancing test that Google must conduct when assessing whether or not a link to a URL should be removed. 

A consideration of what constitutes the public interest is central to this test, a point that Mr Hughes was questioned on thoroughly and a point that Google themselves have been grappling with. 

Lord Judd called this a "huge grey area of judgment" which is illustrated by Google's reversal of some of their own decisions upon further review. 

If Google agrees to remove the URLs will I actually be forgotten?

Consider for a moment that a citizen makes a request and Google decides that the link should be removed.  What does this mean in reality?  Well, Google will remove the link to the specified URLs when conducting a Google search of that citizen's name. 

Lord Wasserman referred to the analogy of a library index card to illustrate this:

"[Google] are not removing anything, but people have a right to make it difficult for others to find those things. If it says something about [a citizen] in a library, the index card referring to [the citizen] should be removed". 

"Lord Sharkey further added that when you go into the library, there are in fact two boxes of index cards; "there is a box marked 'EU' (ie Google.co.uk or Google.de, for example) and there is a box marked 'the world' (ie Google.com).  You can choose to go into the box marked 'the world' and you can get all the information that exists that is being prevented".

The sub-committee and Simon Hughes agreed that the judgment was, to a certain degree, a 'nonsense' because of this point. However, they failed to consider that, under the Regulation, the ruling (which is written into the draft)  would apply wherever any personal data of EU citizens is being processed. 

This would mean that all domains, whether in Europe or not, would have to remove links following a successful request by an EU citizen. 

What are the practical consequences of the ruling on data protection authorities?

The Select Committee was concerned to understand the practical consequences of the judgement and Simon Hughes expressed concern that the Information Commissioner (and other data protection authorities (DPAs) in the EU) could have a sudden wave of extra requests and suggested a number of mitigating strategies:

  • EU DPAs should issue guidance as soon as possible
  • citizens should be provided with accurate information as to their rights to dispel the misconceptions surrounding the judgement
  • it would be helpful for Google to make it clear how many applications they are turning down as well as the number that succeed so that citizens do not think that every request is complied with
  • the Regulation should be finalised as soon as possible to clarify what the law is.

Are there any updates on the Regulation?

Simon Hughes was also questioned on the Regulation.  He made the following points:

  • the UK is encouraging officials to finalise the legislation by the end of the year
  • the UK Government does not support the right to be forgotten as drafted in the current draft
  • Simon Hughes backs a directive rather than a regulation; Mr Hughes explained that even those backing a regulation are looking to 'directivise' the regulation by looking for carve-outs in the legislation.

It will be interesting to see whether the Google judgment has an impact on the final version of the new EU legislation (be it a regulation or directive). The legislation is expected to be adopted by early next year and we will keep you updated with the dialogue in relation to this.

This article was written by Robert Bond.

For more information contact Robert on +44 (0)20 7427 6660 or robert.bond@crsblaw.com