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The Right to be Forgotten

  • December 16, 2014
  • Clayton Rice, K.C.

On November 26, 2014, the European Commission adopted the “Guidelines on the Implementation of the Court of Justice of the European Union Judgment on Google Spain and Inc v. Agencia Espanola de Proteccion de Datos (AEPD) and Mario Costeja Gonzalez C-131/12.” With the adoption of the Guidelines this seemed like a good time to look back at the judgment from where we are now.

On May 13, 2014, the Court of Justice released its ruling in Costeja in which the court was asked whether an individual has the right to request that his or her personal data be removed from accessibility by an Internet search engine. This concept, known as the right to be forgotten, had been the subject of discussion in the European Union since 2006.

The court ruled, at para. 93, that all individuals in the countries within its jurisdiction have the right to prohibit Google from linking to items that were, “…inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed.” The court found that the interference with a person’s right to data protection could not be justified merely by the economic interest of the search engine. But the court explicitly clarified, at para. 85, that the right to be forgotten is not absolute but will always have to be balanced against other fundamental rights such as freedom of expression and of the media. A case by case analysis is needed considering the type of information in question, its sensitivity for the individual’s private life and the interest of the public in having access to that information. The role of the person requesting the deletion in public life may also be relevant. The ruling sparked critical reaction on both sides of the Atlantic.

On May 13, 2014, the day the ruling was released, an editorial in the New York Times declared that it could “undermine press freedoms and free speech”. The risk is that aggrieved individuals could use the decision to hide or suppress information of public importance including links about elected officials.

In an op-ed column in the New York Times on May 14, 2014, Professor Jonathan Zittrain of Harvard University cautioned that the ruling is, “…too broad in that it allows individuals to impede access to facts about themselves found in public documents. This is a form of censorship, one that would most likely be unconstitutional if attempted in the United States.” Professor Zittrain also commented that, “…the decision is oddly narrow in that it doesn’t require that unwanted information be removed from the web…So nothing is being ‘forgotten,’ despite the court’s stated attempt to protect such a right.” Professor Zittrain concluded by saying that how an individual’s reputation is protected online, “…is too important and subtle a policy matter to be legislated by a high court, which is institutionally mismatched to the evolving intricacies of the online world.”

In a more reserved tone in The Economist on May 17, 2014, the ruling was viewed as raising important questions: “One is whether it can ever be effectively enforced. Even if Google cuts a link, what about a smaller search engine that only has operations in America and is hence not bound by EU law? The decision could very well shield many people in cases of legitimate public interest – a businessman, say, who wanted to run for public office and clear his basement of skeletons. And there is a danger that not just giants like Google and Facebook but also innovative startups will be weighed down.”

Jeffrey Toobin, in an article in the September 29, 2014, issue of the New Yorker titled The Solace of Oblivion quoted Jules Polkonetsky, the executive director of the Future of Privacy Forum, as saying: “The decision will go down in history as one of the most significant mistakes that Court has ever made. It gives very little value to free expression. If a particular Web site is doing something illegal, that should be stopped, and Google shouldn’t link to it. But for the Court to outsource to Google complicated case-specific decisions about whether to publish or suppress something is wrong. Requiring Google to be a court of philosopher kings shows a real lack of understanding about how this will play out in reality.” Mr. Toobin concluded that the American regard for the First Amendment, “…guarantees that the Costeja judgment would never pass muster under U.S. law. The Costeja records were public, and they were reported correctly by the newspaper at the time; constitutionally, the press has a nearly absolute right to publish accurate, lawful information.”

Mr. Toobin makes a good point. Señor Costeja Gonzalez was a Spanish citizen and lawyer who filed a complaint with the national Data Protection Agency against a Spanish newspaper La Vanguardia, Google Spain and Google Inc. He complained that an auction notice of his repossessed home on Google’s search results infringed his privacy rights because the proceedings concerning him had been resolved for a number of years and the reference to them was irrelevant. As Mr. Toobin said, the records were fact, were public and were accurately reported by the newspaper.

Would the Costeja ruling pass muster under Canadian law? The same constitutional rights of freedom of expression and freedom of the press, as contained in s. 2(b) of the Charter of Rights, arise as they do under the First Amendment. Profound questions about censorship and revisionist history concern Canadians as well. They are subtle and complex. I’m with Professor Zittrain here. The issues are too important to be left to litigation where the evidence before any court will be tailored by the positions advocated by the parties. This one is for Parliament.

In practice, the implementation of the Costeja judgment will require a balancing approach as stated in the judgment itself. The Guidelines provide, in para. 5, at pp. 5-6, that, “…a balance has to be struck between the different rights and interests and the outcome may depend on the nature and sensitivity of the processed data and on the interest of the public to have access to that particular information on the other, an interest which may vary, in particular, by the role played by the data subject in public life.”

The judgment in Costeja is not now, and was not then, absolute.

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