Last November 26, Article 29 Working Party Committee published the guidelines resulting from the European Court of Justice’s sentence concerning the “right to be forgotten” on the internet.
“ Google and the Right to be Forgotten. The Words of Eric Schmidt (CEO): We are Here to Listen; ” “The Right to Privacy. Google Searches for Balance;” “ Google’s European Tour about the Right to be Forgotten Begins. ” These are the titles, along with many more, that screamed from the first page of major newspapers a few months ago. They were describing the Google’s reaction towards the European Court of Justice’s historic sentence concerning the powerful Internet search engine company last May 13.
For those unaware, this sentence posed a serious problem for the Mountain View’s company (and every other search engine on the internet) by establishing that European citizens have the full right to request that search engines remove from their result pages any links leading to personal information, save particular matters of public interest.
The case even sparked a European tour last autumn ( see our article here ), led by Eric Schmidt himself, the Executive Director of Google, to open debate and discussion with lawyers, experts in the field, and journalists about fundamental questions concerning how to reach a balance between the right to be forgotten and the right to information on the internet. These questions, having been irremediably opened, were essential to the survival of the Californian internet company. All of this activity was in anticipation of Article 29 Working Party, the central organization which includes all European data privacy guarantors putting pen to paper to compose the behavioral guidelines for the various National Authorities who are charged with following and managing individual appeals in the future. Completing the picture, it is important to add that the working committee mentioned above, in view of the European Court of Human Rights’ decision, had to examine and give advice on how the entity “responsible for data” (in our case, Google) should cooperate with the National Authorities that are supervising the citizens’ right to the protection of personal data.
All of this is in service to the fundamental right recognized by Article 8 of the European Union’s Charter of Fundamental Rights which establishes that “everyone has the right to the protection of personal data concerning him or her. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned....Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.” To guarantee the exercise of those rights, the Charter foresees “control by an independent authority,” meaning the National Agencies or Authorities that currently exist for citizens’ protection of personal data.
We come now to the latest developments in the matter, the most relevant aspects about the new directives.
First of all, it is important to remember that the right to the removal of one’s own data does not encompass the whole web. It does not regard the websites where the original information was collected by the Internet search engines and above all it does not concern the archives of online newspapers or news agencies.
What is more, regarding the geographical area of application, although the ruling only calls operators on the old continent into question, it does not mean that only names with a European domain (for example: .eu; .it; .fr; etc.) have to be erased from the indexes. It also includes all generic domains such as .com, .net, .org and so on. This detail is quite obvious: it would not be helpful to erase information from the national domain in which a citizen carries out his search, if the same information can simply be reached in another national Google domain by changing the search language.
How do we go about requesting the removal of information about us that we don’t want as part of the public domain on the web? The most suitable means, without any cost, and which allows requests to be quickly processed, is recourse to online request forms which search engines are required to put at navigators’ disposition. Alternately, the European Union allows citizens to request the removal of data in the way that they deem appropriate. It seems that behind this “formal quarrel” the European authorities do not care to spare Google the efforts of any juridical processes.
In our opinion however, the crux of the matter remains unresolved. How do we find the balance between the right to privacy with the removal of undesired information by individuals, and the right of the community to know? That is to say, who can decide what is considered public interest on the internet, and with what criteria? It was certainly not the Working Party’s responsibility to decide about this matter. Now, at least two things are clear. Above all, the applicant must be a real person; pseudonyms and nicknames are considered to be included in a name when a person’s identity can be easily traced from them. Another essential point is that data removal must be facilitated when the case involves minors.
With respect to before, we certainly have greater clarity. Yet it is also true that something is still missing from the point of view of transparency of the rules of the game. How in fact do search engines index the news? According to which criteria and interests? Many of these questions are still open. For its part, the Commission strongly invites search engines to publish their indexing criteria and to make more detailed statistics available. To put it bluntly, Google must be transparent. Paradoxically, this search engine, which was ordered by the Spanish national authorities to remove outdated and unfair information of a citizen that was unnecessarily published, argued precisely on the basis of the citizen’s right to information. Google did not appeal, predicting that it would lose the legal battle. Now it also does not want to lose in the realm of public opinion--that would certainly be far more economically damaging.
* Efrén Díaz Díaz is a Spanish lawyer from the legal studio “Mas y Calvet,” and a specialist in Public, Tecnological, and Geospacial Law.