Partner Article

The “right to be forgotten” ruling – deleting history?

Nick McAleenan, explains why the controversial ruling allowing old search hits to be supressed could be a boon for brands and a headache for search engines – if it is allowed to stand.

Like it or not, Google plays a hugely important role in the way our society works. It affects the choices we make and the way we live our work and private lives.

It is no surprise then that the recent Court of Justice of the European Union (CJEU) ruling that individuals have the right to force search engines to remove “old” and “irrelevant” references to them from rankings has got people talking, including our own Prime Minister, who does not seem to be a fan.

For those looking to prevent damaging stories from the past cropping up in current search rankings, this could be good news. For search engines like Google, it’s a massive headache.

However, what is far from clear is how the ruling will work in practice and, indeed, whether the decision can withstand inevitable attempts to water it down.

Impact

It is the decision that Google must have been dreading.

The floodgates have been opened to a huge volume of requests for links to be supressed, not least because the ruling’s scope goes far beyond removing links to false information and, inevitably, will lead to removal requests concerning “embarrassing” content.

It will be a logistical nightmare for the company to deal with the inevitable tsunami of requests for webpages to be delisted. Google has already said that it is considering how to comply with the decision from a practical perspective, but it’s a safe bet that compliance will be very expensive.

Google is being asked to strike a balance between the legitimate interests of various different parties. Where disputes arise, they may end up going to court. Equally, Google may take down links rather than bothering to enter into individual debates with complainants, but this remains to be seen.

Striking a balance

The decision to back a “right to be forgotten” comes as a surprise because it contrasts with the CJEU’s approach in previous cases.

The inevitable criticism of the decision is that the court has got the delicate balance between the competing interests of freedom of expression and the right to privacy wrong. Indeed, some people have argued that the ruling legitimises censorship and allows history to be re-written.

From a purely legal perspective, some aspects of the decision are understandable. Why shouldn’t search engines be subject to data protection rules? Equally, why should US companies doing business in the EU effectively enjoy exemption from the rules?

However, the decision that links can only be maintained for as long as the information is “relevant” is controversial. Further, the ruling raises more questions than it answers. How exactly should the competing rights be balanced in a particular case? When is personal data no longer relevant? When will there be a public interest to maintain the link?

It is worth bearing in mind that the rules being applied here were introduced before Google had even been established. Critics will argue that the case is another example of the law struggling to adapt to the reality of the internet.

So will the decision stand?

The court could narrow or limit this decision in forthcoming cases. However, in the meantime, working out the implications of the court’s decision is likely to involve a great deal of litigation.

The EU is also in the process of creating a unifying set of data protection rules – the General Data Protection Regulation – and the specifics of this are still up-for-grabs. This may present a lobbying opportunity for the US-based search engines.

Could the social media giants, Twitter and Facebook, be next in the CJEU’s firing line? Watch this space.

This was posted in Bdaily's Members' News section by Nick McAleenan .