A few notes about the Google case and the right to be forgotten

The decision of the Court of Justice of the European Union reopens the debate on the right to be forgotten (see Mantelero, 2013).

The Court has affirmed:

“As the data subject may, in the light of his fundamental rights under Articles 7 and 8 of the Charter, request that the information in question no longer be made available to the general public on account of its inclusion in such a list of results, those 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 having access to 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 its inclusion in the list of results, access to the information in question.”

The most controversial aspect of the decision is the evaluation of the opposing interests (right to be forgotten vs freedom of expression). (Zittrain, 2014)

The Court suggests that “supervisory authority or judicial authority” may order search engines “to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages published by third parties containing information relating to that person”. Nevertheless, the provisions of the Directive 95/46/EC do not exclude that the request can be made directly by the data subject to data controllers (i.e. search engines). In this case, to avoid lawsuits and claims for damages, search engines should promptly perform a balancing test of the interest in the person in his or her privacy versus the interest in the public at large to be informed, but this kind of test should be made by judicial authorities or DPAs and not by a private company.

In the past, DPAs ordered to media to modify the robot.txt file in order not to make specific contents indexable by crawlers of search engines. In those cases, a prior balancing test may be also conducted by publishers, which have professional skills and the duty to check the newsworthiness of the news. For this reason, publishers are in better position than search engines to balance the opposing interests.

Anyway, the positive aspect of this decision is that it induces to reconsider positively the Article 17 of the EU Proposal for a General Data Protection Regulation, which is clearer that the scenario depicted by this decision. This provision admits a specific exception for freedom of expression and recognizes the role played by courts and regulatory authorities in deciding which data must be erased. Finally, it empowers the Commission to define detailed procedures and solutions to delete personal information.

Giving a “political” interpretation to the decision, it seems an anticipation of the provisions of the EU Proposal, although made in a way that should induce lobbies to reconsider their opposition against the “right of erasure” defined in the Proposal.

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