A judgment released this week by the European Court of Justice (the Court) has confirmed the existence of the much debated "right to be forgotten".
Background
Mr Costeja Gonzalez raised a complaint regarding links to two newspaper articles which contained a notice for a real-estate auction in connection with financial problems he was experiencing. The links were returned in the results list when his name was entered in the Google search engine (Google Search). As the issue detailed in the articles had been settled for 16 years, Mr Costeja Gonzalez felt that these references to him were now irrelevant and did not want the articles to be linked to his name on Google Search.
The law
Under the European Directive on the processing of personal data (the Directive) every data subject (the person whose data is being processed, in this situation, Mr Costeja Gonzalez) has the right to request deletion of data which is old, inaccurate or irrelevant. The Court interpreted the provisions of the Directive as placing a requirement on Google and other search engine providers to delete links to information which, upon an assessment of the information, is no longer necessary or relevant for the purposes for which it was originally collected.
In assessing whether Mr Costeja Gonzalez had the right to request deletion of the relevant links the Court weighed Google's economic interests and the interests of the general public in having access to the information against the interests of Mr Costeja Gonzalez. It was concluded that the fundamental rights of family and private life and protection of personal data of an individual would always outweigh the economic interests of the search engine provider and those of the wider public.
What now?
It will be interesting to see how this decision is applied in practice and the ramifications it will have for Google and its competitors. Up until now defamation and libel proceedings have been used as tools to remove false and prejudicial information from the internet, following the court's decision it would appear data protection can now be used to remove true information from the internet. Bearing in mind the acclamation which the internet receives for its wealth of information (and its long memory!) many internet users find this a concerning concept. As Wikipedia founder Jimmy Wales tweeted:
"When will a European court demand that Wikipedia censor an article with truthful information because an individual doesn't like it?"
At the current time there are over 200 cases waiting to be brought against Google Spain regarding requests by individuals for removal of links from Google Search. If Google is obliged to remove links from Google Search where the information behind those links is no longer relevant, are individuals now entitled to request that every link which they find unfavourable towards them be deleted? The court has clarified that where there is a public interest in maintaining access to the information, for example because of the data subject's public status, this will outweigh the interest of the individual in having any links to the data taken down.
The Court's decision had been hailed as moving the data protection rules into the modern world. However, it is hard to see how a "right to be forgotten" could really achieve its purpose in a "modern world". Take Mr Costeja Gonzalez for example, a Google Search of his name following the Court's decision will return pages of results which include every detail of this case, including all the financial troubles of 16 years ago. In fighting for his "right to be forgotten" Mr Costeja Gonzalez has successfully cemented his place (and that of his financial woes) in legal history. How unfortunate!
Disclaimer
The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.
