‘Right to be Forgotten’ Must be Limited to EU Domains, Advisory Council says

On 6 February 2015, Google’s Advisory Council released a report on the so-called ‘right to be forgotten’. The Advisory Council was set up in the aftermath of the controversial Google Spain v Costeja judgment, in which the EU’s top court ruled that individuals had the right to request that Google delist links to results generated by a search for their name. The Advisory Council was asked to advise on how best to balance individual’s right to privacy and the public’s interest in access to information’.

ARTICLE19 gave evidence and provided a written response to the Advisory Council, in which we emphasised that in discussion on ’right to be forgotten’, the right to freedom of expression must be given equal weight with the right to privacy, and that there should be an overarching presumption that information legitimately in the public domain should remain in the public domain.

ARTICLE19 finds that the Advisory Council’s report represents a thoughtful attempt to address complex issues regarding the ‘Right to be Forgotten’. In particular the following aspects are positive:

  • The recommendation that de-listings should be limited to EU domains;
  • The Advisory Council rejected the proposal that users in Europe should be blocked from accessing search results using other non-EU domains such as google.com‘ given concerns of proportionality and practical effectiveness;’
  • The publishers and webmasters should be notified that their content has been de-listed as a matter of good practice. We hope that this will become Google’s default position given the importance of notification in providing an opportunity to appeal a delisting decision.

The report also recommends a high degree of transparency in the processing of delisting requests, including a detailed RTBF request form, also in line with recommendations made by ARTICLE19.

We are concerned, however, by the Advisory Council’s recommendation that whether information is false should be a factor in the consideration of delisting requests. False information about individuals is a matter that is normally dealt with by defamation law rather than data protection and involves complex judgments of facts and law that are better left to the courts. Moreover, laws and policies aimed at suppressing false information generally constitute a threat to freedom of expression, which protects both true and false expression. Facts and opinions are not always easily separated. There is a risk that by giving weight to the “truth” of the content in a delisting decision, legitimate information may be de-listed.

Looking ahead, ARTICLE 19 hopes that data protection regulators will take the Advisory Council recommendations into account when balancing individuals’ rights to privacy and data protection and the public’s interest in access to information. We also believe that these recommendations should be duly taken into account by EU lawmakers as the Data Protection Regulation continues to be negotiated in Brussels.