26 September, 2014
The European Commission released a fact-sheet on the so-called ‘right to be forgotten’, which was introduced through a judgment of the European Court of Justice in the Costeja (Google/Spain) case. Since the judgement, the correct interpretation of this right, as well as its advantages and drawbacks, has been lively discussed.
The Court ruled that individuals are allowed to request search engines to remove information from their results if that information is irrelevant, excessive or unnecessary defamatory. While the WP29 is working on guidelines regarding the correct interpretation of this right, the European Commission has released a fact-sheet to refute some of the myths that have surrounded the right since it was introduced through the ECJ judgement. According to the European Commission, ‘a sober reading of the judgement shows that the concerns that have emerged in this debate are exaggerated or simply unfounded.’ The Commission wants the debate to be based on facts.
The European Commission therefore challenges six statements that have emerged. We have summarised the responses of the Commission to each of these statements below:
1. “The judgement does nothing for citizens”
According to the European Commission, the right to be forgotten is about ‘making sure that citizens are in control of their personal data. A citizen should be able to have his or her personal data removed from a search engine, if certain conditions are met.’
2. “The judgement entails the deletion of content”
The European Commission emphasises that the right to be forgotten does not affect the actual content the individual deems irrelevant, excessive or unnecessary defamatory, but only the search engine’s search results. The actual content will remain on the original source, which can still be found by either going directly to that source or by using a different search query.
3. “The judgement contradicts freedom of expression”
The Commission goes on, explaining that the right to be forgotten is not absolute, but has to be balanced against other fundamental rights.
4. “The judgement allows for censorship”
According to the Commission, “the right to be forgotten does not allow governments to decide what can and cannot be online or what should or should not be read.” The right to be forgotten gives individuals the opportunity to defend their interests as they see fit, while independent data protection authorities supervise the assessments carried out by search engine operators.
5. “The judgement will change the way the internet works”
The Commission is short and to the point with regards to this argument; according to the Commission, “the internet will remain an important source of information as content will remain in the same location and be accessible through search engines. The way search engines function will also remain the same, since they already filter out some links from search results.”
6. “The judgement renders the data protection reform redundant”
The upcoming data protection reform will introduce more changes than just introducing an explicit right to be forgotten, such as the right to freely transfer personal data from one service provider to the other.
In its fact sheet, the European Commission gives examples of each of these explanations. The factsheet can be found here.
Senior Legal Consultant