European Union: ‘Right To Be Forgotten’ Goes Global

The Article 29 Working Party ("Working Party") – the collection of EU Member States' national data protection authorities ("DPAs") – has issued its much awaited guidance on how DPAs should implement the Court of Justice of the European Union's ("CJEU") Google Spain judgment.

The CJEU's judgment recognised a right of individuals to be 'forgotten' on search engines. EU citizens and residents were empowered, in certain circumstances, to request that links returned against their names by search engines be de-listed.

While the judgment has proven to be ground-breaking, search engines and citizens had been grappling to understand the exact extent of the right to be forgotten. The publication of the Working Party's guidelines aims to set down the parameters of this newly enunciated right.

First Europe, then the World

Likely to be the most talked about aspect of the Working Party's recommendations is its statement that search engines should not limit de-listing to EU domains only. Up to now, search engines had defended de-listing content from national search domains (e.g. as opposed to on the grounds that users tend to access search engines via these national portals.

The Working Party states that such a course of action, "cannot be considered a sufficient means to satisfactorily guarantee the rights of data subjects" as set out in the CJEU's ruling. The Working Party wants any de-listing undertaken by a search engine on a national domain to happen on all "relevant" domains, including .com.

If implemented, the Working Party's recommendations could well lead to results returned globally being modified on foot of EU data protection law. This is likely to set up a jurisdictional conflict, particularly between EU privacy law and US free speech rights.

Silence is golden

Another notable aspect of the Working Party's recommendations is its instruction that search engines should stop contacting third party publishers to let them know that an individual has requested that content on such publishers' sites be de-listed. The Working Party is categorical in its assertion that, "there is no legal basis for such routine communication under EU data protection law." However, the Working Party's guidance does not explain why such notifications are covered by EU data protection law, nor does it address the fact that its position essentially amounts to a restriction on a search engine's right to communicate with website publishers, thus engaging free speech guarantees under EU law

Additionally, the Working Party advises search engines not to create tailored notifications for users advising them that search results have been modified following the submission of a de-listing request. In circumstances where search engines wish to give users some notification, a generic banner should be placed above or below search results. The Working Party states that the identity of the de-listing data subject should not be ascertainable from the information contained in this banner.

Criteria Enhanced

The recommendations go into greater practical detail on the criteria that search engines should use to decide whether a de-listing request is accepted or rejected. Some of these criteria include whether:

  1. the data subject plays a role in public life – politicians, senior public officials, business people and members of regulated professions can usually be considered to fulfil a role in public life. Citing the decision of the European Court of Human Rights in Hanover v Germany, the Working Party states that, "as a rule of thumb, if applicants are public figures and the information in question does not constitute genuinely private information, there will be a stronger argument against de-listing search results related to them";
  2. the data is accurate – the newly created right to be forgotten protects individuals from inaccurate, inadequate and/or incomplete information. It offers individuals the right to have opinions of others de-listed from their search results. While some links may constitute a personal campaign against the data subject, the Working Party specifically states that, "this does not necessarily mean that DPAs will consider it necessary to have the relevant search result delisted";
  3. the original content was published in the context of journalism – while this is a persuasive argument to refuse a de-listing request, this criterion alone is not enough to justify such a decision. The Working Party acknowledges that the CJEU's ruling clearly distinguishes between the legal basis for publication by media and the legal basis for search engines to return results;
  4. the data subject is suffering prejudice on account of the search results complained of – there is no obligation for a data subject to demonstrate prejudice in order to request de-listing but where prejudice can be established, it is a strong factor the search engine should consider in favour of de-listing; or
  5. the data can be considered sensitive or sufficient to put the data subject at risk – if the complained-of links include information regarding the data subject's religious, political beliefs etc. or put them at risk of identity theft or stalking, the Working Party directs DPAs to consider the de-listing of search results as appropriate.

A new dawn

Echoing the views of the CJEU, the Working Party states that, "the rights of the data subject prevail as a general rule, over the economic interest of the search engine...". Data subjects' rights also "generally prevail over the rights of internet users" who may wish to access personal information via a search against the data subject's name online. The Google Spain decision is arguably the most important European internet law case of recent years. This initial guidance suggests that EU DPAs intend to robustly enforce this judgment.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
13 Nov 2018, Other, Dublin, Ireland

We will host our next Tech@MHC event on Tuesday 13 November in our offices on Barrow Street, Dublin 4.

14 Nov 2018, Seminar, Dublin, Ireland

We will host our commercial litigation seminar on Investigations and White Collar Crime on Wednesday 14 November in our offices on Barrow Street, Dublin 4.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions