In the wake of the judgment of the Court of Justice of the European Union (CJEU) delivered in May, the ‘right to be forgotten’ has been heavily discussed at different levels in the European Union (EU).

This judgment dealt with the right of an individual to request that his or her personal data be removed from accessibility via a search engine. The case owes its origin to a complaint filed by a Spaniard who searched himself on Google and found a link to a newspaper advertisement that reported that his house was being auctioned for failing to pay an old debt. This person asked Google to remove the link and when they failed, he reported this to Spain’s data protection authority claiming that this was a breach of data protection laws. In a landmark ruling earlier this year, the Luxembourg Court confirmed the right of EU citizens to have the results of search engines conducted against their name removed where such information was inaccurate, inadequate, irrelevant or excessive for the purposes of data processing. It ruled that search engine operators, as data controllers, have the obligation to remove links to web pages from the list of results displayed, following a search made on the basis of a person’s name. The interpretation of this ruling became a tricky exercise for search engines like Google that are required to balance the right to information of the public on the one hand and the right of individuals to protect their personal data on the other.

Following this decision, there is a high demand for the right to be forgotten, with numerous complaints being received by search engines and data protection authorities across the EU for the removal of entries from search results conducted on the internet. Google claims that it has received over 100,000 requests from EU countries requesting the enforcement of the right to be forgotten, particularly in relation to criminal records, negative press stories and embarrassing photos.

The Data Protection Working Party, made up of EU member state national data protection authorities and set up under the Data Protection Directive, is working hard to achieve a uniform approach towards complaints received by search engines following the CJEU ruling. Its competence is to contribute towards a coordinated application of EU laws by issuing recommendations, opinions and working documents.

Starting in September through to December, the Working Party will be discussing the issue of the so-called ‘right to be forgotten’ in order to reach a common approach to handling complaints lodged by individuals. The Working Party will be constructing guidelines, particularly in relation to appeals of individuals whose requests for removal of information were declined by search engines. These guidelines will help balance the right of the public to information against the individual’s right to privacy, based on certain objective factors, such as the public role of the individual and the nature of the information. In a bid to strengthen this uniform approach, the Working Party also considers the need to put in place dedicated contact persons within national data protection authorities to develop common criteria to handle cases and share the records of decisions taken on complaints.

On the same day, the Working Party issued a press release on its current discussions and intentions, the European Commission released a ‘myth buster’ on the May 2014 ruling delivered by the CJEU in an attempt to address the main points that have been the subject of interpretation ever since. Contained in a fact sheet, the document tackles six perceived myths surrounding the Court’s decision to ensure that any public debates are fact-based.

This document sets out clearly the implications on the CJEU ruling and addresses concerns raised about the extent of the right to request delinking of material at the request of internet users. The Commission’s fact sheet considers that the judgment lays the groundwork for citizens to be in control of their personal data but does not entail the deletion of content. The fact sheet emphasises that the right to be forgotten is limited to the search engine results involving an individual’s name, without affecting the actual content that remains in its original location on the internet and can thus still be found either by going directly to that source or by using a different search query. The Commission’s document spells out in no uncertain terms that the right to freedom of expression is not absolute and is limited by other fundamental rights.

The Working Party’s guidelines and the EU Commission’s fact sheet are a prelude to the codification of the right under the proposed data protection regulation. While it is hard to escape one’s past on the internet, the right to be forgotten addresses the current vacuum in the digital world.

Josette Grech is an associate at Guido de Marco and Associates.

Sign up to our free newsletters

Get the best updates straight to your inbox:
Please select at least one mailing list.

You can unsubscribe at any time by clicking the link in the footer of our emails. We use Mailchimp as our marketing platform. By subscribing, you acknowledge that your information will be transferred to Mailchimp for processing.