The Right Side of the Right to

be Forgotten

In the summer of 2014, the European Court of Justice

ruled that individuals have the “Right to be Forgotten.”

That is to say, the Court ruled that people have the right

to ask a search engine to remove links that contain

personal information about them. The Right to be

Forgotten — or RTBF — can only be exercised under

certain conditions, such as when the information is

inaccurate, outdated or otherwise irrelevant, but this

limitation has not made the ruling any less

controversial.

The Internet search provider Google is, of course, front

and center in the debates surrounding the definition

and extent of the RTBF. Indeed, it was Google’s

unwillingness to remove the digital footprint of a

Spanish national who took issue with the fact that a

Google search turned up information about an outdated

legal matter that caused the court to examine this

extension of human privacy rights. The Court’s ruling

brought the RTBF into being, and in so doing, it

opened up some rather massive virtual floodgates.

Thousands upon thousands of requests to remove

names from search results, a process often referred to

as "delisting," have poured into Google’s now-

automated removal request system, and the Google

Advisory Council on the Right to be Forgotten has

been forced into a discussion with the Court about just

exactly where and when information should be

delisted. Indeed, the question of where is now at the

heart of the most recent dilemma caused by the RTBF.

When a person types "www.Google.com" into their web

browser’s navigation bar, they are automatically

directed to their country’s main Google page. For

example, people in the United States are directed to

www.Google.com, people in the United Kingdom are

directed to www.Google.co.uk, people in Australia are

taken to www.Google.com.au, and so on.

It is Google’s belief that localized delisting is an

effective and acceptable response to a delisting request,

and that the information may still be published on non-

European Google domains — like Google.com —

without going against the Court’s ruling. The EU does

not concur.

Both sides of this argument make a fair bit of sense.

The EU has inferred that the ability to use an alternate

version of Google to access locally delisted information

makes the RTBF virtually impossible to truly enforce.

While this may be true, it is also true that the EU

cannot force the whole of the Earth to comply with its

own views on the extent of a person’s right to privacy.

This problem is known as the question of

extraterritoriality, and it is going to be a very difficult

question to answer. In a recent report, the Council notes

that the Court’s ruling does not specifically address the

issue of whether a delisting applies to more than just

the European-directed search services. Officially, the

report states that, “in the current state of affairs and

technology,” a limited delisting is sufficient, noting that

“over 95% of all queries originating in Europe are on

local versions of the search engine.”

That report, based on a majority opinion, includes a

section in which individual members of the Council

may dissent. German MP Sabine Leutheusser-

Schnarrenberger does just that, stating that she believes

delisting from all domains “is the only way to

implement the Court’s ruling, which implies a complete

and effective protection of a data subjects’ rights.” She

goes on to argue that in the case of a global Internet, the

protection of one’s rights must be global.

France’s CNIL — the French data protection authority

— is preparing injunctions and sanctions for a legal

battle with the search giant if its requests for national

delisting are not granted, and there will surely be other

penalties from similar powers in other nations if

Google continues to oppose the EU’s interpretation of

the Court’s ruling. The company is no stranger to legal

confrontations, and its own legion of lawyers is surely

preparing for any eventualities.

There’s no telling who’s on the side of righteousness in

this fight. Indeed, there may not be one. Does the right

to privacy supersede the right to free speech? Is one of

these human rights more basic than the other? That may

have to be decided in court. Wherever the decision is

made, it will not be an easy one.

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