A right to be forgotten? EU Court sets worrying precedent for free speech

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Gabrielle Guillemin

14 May 2014


On 13 May 2014, the Court of Justice of the European Union (CJEU) handed down its much-awaited decision in Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González. The Court held that a search engine operator is responsible for the processing of personal data which appear on web pages published by third parties.

The upshot of this is that anyone whose personal information appears as a result of a search query may approach Google or other search engine and ask them to remove the links at issue even though the publication of the information itself may have been perfectly lawful in the first place. If it appears that the information is “inadequate, irrelevant or no longer relevant”, it will have to be erased. The data subject will not be required to show any harm or prejudice as a result of the information being made available through search.

The implications of the Court’s judgement for free expression are profoundly worrying. Although the Court was interpreting a data protection measure rather than some outright restriction on free speech, the Court failed to even mention the right to freedom of expression and information under Article 11 of the EU Charter of Fundamental Rights. Indeed, it essentially relegated the right to freedom of expression to a mere “interest” of the general public in “finding information”, which as a “general rule” was overridden by the “rights” of the data subject under Articles 7 and 8 of the Charter (i.e. the rights to privacy and protection of personal data). True, the Court allowed for a public interest test in finding personal information in certain circumstances, “such as the role played by the data subject in public life”. However, this was expressed as a limited exclusion, rather than a right to be properly balanced with the right to privacy, as the Advocate General did in its Opinion in the case.

Even more disturbingly, the Court’s judgment is likely to have a significant chilling effect on freedom of expression. Giving the obvious practical difficulties of Google undertaking an individualised assessment of each request for removal and the sheer volume of potential requests (which could easily run into the millions within a very short time), it will always be easier for search providers to simply remove material without any assessment whatsoever for fear of being found in breach of its data protection obligations. Once again, search engines will be put in the position of private censors of the Internet. Even if the Googles of this world were to stand up for the free speech rights of their users, “supervisory authorities” would still be laden with far-reaching powers to effectively remove perfectly lawful information from the internet. In this regard, the Court entirely ignored the warning of its Advocate General who had found that internet users’ right to information would be compromised if searches for information concerning an individual did not generate search results providing “a truthful reflection of the relevant web pages but a bowdlerised version therof”.

The judgment also raises several questions regarding its implementation: how is it effective for Google to remove personal information if the information otherwise remains available on a third-party website? What about the obligations of other search engines or those which are not established in the EU for the purposes of the Directive? If search engines cannot hold the personal information of third parties for any longer than necessary for their business purposes, aren’t vast swathes of perfectly legitimate information going to disappear from the Internet?  

No doubt the Court's judgment was well-intentioned but it also poses a serious risk to freedom of expression online.

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