In this blog post, Suhani Chanchlani of Amity Law School, Delhi, analyses the aspects of the European Union`s controversial Right to be Forgotten.
What Is the Right to Be Forgotten?
Under the Right to be Forgotten, residents of the EU nations can request commercial search engines like Google, Yahoo and Bing to remove web pages from the list of search results of the name of the requester. The search engine, however, would itself decide upon the merits whether the request is actual to remove web pages that are providing information that is no longer of relevance.
In cases where the person’s application is denied, he/she has an option of approaching higher judicial offices or a designated data protection regulators. Search engines can be fined if they fail to remove web pages from their list of search results after validly recognizing a request.
It is pertinent to note that on acceptance of the request, the impugned web page is merely not displayed in the search results of the name of the person. It is not expunged and therefore, remains online. Although it becomes tough to find it.
How Did It Come into Being?
The Right to be Forgotten emanated from the European Court of Justice when a Spanish citizen Mario Costeja Gonzalez initiated actions against Google for its refusal to take down a web page on the search results of his name. This web page displayed a newspaper advertisement that announced the auction of one of the properties of Mr. Gonzalez that took place in 1998 to discharge his social security debt.
Mr. Gonzalez was of the opinion that this newspaper advertisement was no longer of any relevance. Hence, Google should take down the link that is harmful to his reputation and invasive of his right to privacy without serving any benefit to the public as a whole.
Google, on the other hand, contended that it neither is the creator of the information that it provides on its search results, nor does it solicit the same. It merely catalogs web pages that already exist online.
The judgment went for Mr. Gonzalez and laid the foundation of the controversial Right to be Forgotten. The Court was of the opinion that the search engines are the controller of information as they retrieve, record and organize the data and store it on their servers to make it available to their users in the form of search results. Therefore, the search engines can be held liable for their activities that are in infringement of anybody`s Right to Privacy since it does anything additional to that of the publishers of the websites.
Moreover, it becomes difficult for a person whose right to privacy is infringed by multiple publishers, to request each of them to take down the offensive content. However, search engines who controls data that is displayed in their search results can at least remove web pages from its search results.
What Is the Scope of This Right?
This right can be exercised by the residents of EU nations only. Earlier, the offensive web pages were not displayed only on the European websites of Google and therefore could be easily accessed by users on using the USA version of the website www.google.com. Google filled this gaping loophole recently. Now the users from EU nations would not be able to access removed web pages using any version of Google. To determine users in EU nations Google uses geolocators.
However, France’s data-protection regulator Commission Nationale de l’Informatique et des Libertés, or CNIL wants Google to make ‘removed web pages’ inaccessible globally on all domains of Google for the effective exercise of the Right to be Forgotten. It contended that an EU resident can still be able to access web pages outside EU nations or by using services as a virtual private network.
In response to this ruling, Google has filed an appeal to the France`s highest court that has jurisdiction over appeals against administrative bodies Conseil d’État. Google is on a firm stand that it only abides by the law of the country in which it operates. It cannot possibly apply the laws of a nation to its activities that are carried out beyond that nation`s jurisdiction.
Why Is the Right to Be Forgotten Appreciated?
- It just allows individuals to make a request to a search engine to remove a web page from the search results of the name of a requester if the information provided by the web page is inadequate, irrelevant, excessive or invasive of his/her right to privacy. Search engines have to respect such requests. But at the same time, they can deny those requests that ultimately aims at suppression of freedom of expression or of the people`s right to know. This right to know extends to the information about the role played by individuals in their public lives which people have a general interest to know. Thus, a request made by a public figure for delisting a web page would be refused since it relates to his/her public life.
- The economic interests of search engines would succumb to the right to privacy of individuals. Compromising information about individuals that serves no public interest would be lost in the obscurity of the internet if search engines would delist it from their search results. Thus, a victim of a revenge porn or a person who had been accused of a crime but was acquitted later and other such individuals who have sustained personal damages due to the ‘openness’ of the internet could finally remain intact and be forgotten.
What Are the Shortcomings in Its Practice?
- The Right to be Forgotten makes it all the more difficult to forget. Consider the very case that was the genesis for this right. Mr. Gonzalez won the case against Google. However, the very purpose of filing of the case, i.e., the delisting of a web page that contained newspaper advertisement of the property foreclosure has come under the public scan as it has now become information that the public has a general interest to know. Many requests have met a similar fate.
- It is human to be curious about knowing things that are purposely hidden from you. Thus, just like Chinese, people in EU nations would be likely to use way around such as virtual private networks specifically to know about things they cannot access through conventional methods or they could easily ask a person located outside EU to run searches on an individual. Bottom-line: Right to be Forgotten defeats the whole purpose of forgetting.
- It allows certain individuals to impede access to information that may have been published legitimately in public domain. Although the web pages themselves are not exterminated then again, it becomes virtually impossible to access public records on the internet without the aid of a search engine.
- The test for removal of web pages is vague. According to the judgment, they are amenable to be excluded from search results if they are “inadequate, irrelevant or no longer relevant”. These terms mean different things to different people. Search engines are more likely to accept requests to be on the safer side so as to avoid the cost of legal actions.
This would seriously harm freedom of expression and the general right of people to know.
How Has the Right to Be Forgotten Been Exercised from Two Years Since Its Inception?
Google claims to have received 436,182 requests out of which it has evaluated 1,527,266 URLs. 43% of the URLs out of the evaluated ones have been removed. Facebook, Twitter, and YouTube features among top ten websites whose links have been most frequently removed from the search results.
Examples of removal requests that have been approved include:
- An article highlighting the commission of a minor crime by a teacher ten years ago.
- Web pages that displayed the address of a woman.
- An article that covered the removal of web pages done by Google that related to the commission of a minor crime.
- A decade old article that covered the murder of a person and mentioned the name of his wife.
- A victim of rape`s request to remove articles that covered on her rape.
- A crime victim whose name had been highlighted in stories covered on three web pages that mentioned her name.
- A conviction order of a person who was subsequently acquitted of the same crime by a higher court.
- An article that covered the participation of an individual as a minor in a contest.
- Articles covering investigations of sexual abuse accusations on a former clergyman.
- A link that had a copy of an official state`s document that reported on acts of fraud.
- A request to remove 50 links that reported on public outcry over accusations of abuse of welfare services.
- Articles that covered the use of botched procedure by a doctor.
- Report on the dismissal of a person from his job for the commission of a sexual crime.
- Report on the embarrassing content that a media professional had posted on the internet.
- Articles about the arrest of a professional for the commission of financial crime.
- Report on the arrest and banishment from a church of a priest for possession of child pornography.