By Anju Anna John:
If you live in a country where the European Union’s Directive 95/46/EC (more commonly known as The Data Protection Directive) is applicable, you have the right to object to certain personal data being available on a Google search result. In other words, you can ask Google to ‘forget’ something about you, in exercise of your ‘right to be forgotten’.
It started when Mr. Costeja Gonzalez registered a complaint with the Spanish Data Protection Agency (AEPD) (Spanish – Agencia EspaÃ±ola de ProtecciÃ³n de Datos), against La Vanguardia Ediciones SL (a daily newspaper), Google Spain and Google Inc, regarding an announcement of a real estate auction, in connection with the attachment proceedings for the recovery of social security debts from 16 years ago. It is important here to note that Article 14 of the Data Protection Directive allows for the ‘data subject’s right to object’ . Furthermore, Article 14 of the Directive is in line with Articles 7 and 8 of the European Union Charter of Fundamental Rights with regard to respect for private and family life and protection of personal data respectively . Since La Vanguardia carried the announcement on the orders of the Ministry of Labour and Social Affairs, the complaint against them was rejected by AEPD. However, the AEPD proceeded to hold Google responsible. Google proceeded to the National High Court, which referred the matter to the Grand Chamber of the European Court of Justice.
On 13th of May, 2014, the Grand Chamber passed its judgment that, unless it is in the interest of the public to have access to such information about the subject, the information should no longer be linked to his name . The judgment differentiated between the website carrying the information and the search engine operator providing the link to the information. Essentially, a Google search with Mr. Costeja Gonzalez’s name should no longer display the announcement carried by La Vanguardia in view of the fact that, at this point, Mr. Gonzalez’s right to privacy on the matter overrides the public’s right to this information about him. However, the announcement in La Vanguardia continues to exist on the website.
According to James Whitman, a professor at Yale Law School, the ‘right to be forgotten’ finds its roots in the practices in the 19th century France and Germany, where individuals were allowed to protect their honour and reputation through duels or through courts . However, this is in direct contradiction with the principles of Western democracy that calls for free speech that is exemplified by the Constitution of the United States in its First Amendment. Moreover, the court has not clearly laid out what can be removed, but left it to the search engines to decide by weighing the individual’s right to privacy against the public’s right to know.
Google’s initial reaction to this judgment was that, the ruling was ‘disappointing’. In an interview with the Financial Times, Google’s co-founder stated that this judgment ‘threaten(s) the next generation of internet start-ups and strengthen(s) the hand of repressive government’ .
However, in accordance with the Court’s judgment, Google set up an online form on the 30th of May, where interested individuals could fill up the form with the relevant links that they want removed, along with an explanation for each link and, a valid copy of a document to prove your identity. Google has set up a committee, which includes people like Jimmy Wales, the co-founder of Wikipedia and Luciano Floridi, an Oxford Philosophy professor. By the end of the first 24 hours, Google had already received 12,000 requests to be ‘forgotten’. Some of these requests included that by a politician regarding his behaviour in office and also a pedophile who was convicted for possession of images of child abuse.
While many Europeans with minor convictions in their distant past are grateful for the European Court’s decision, people around the world have generally come out to point out the negative effects of this judgment. Instead of asking Google to review for accuracy or lawfulness, the judgment asked it to review (upon demand from the subject), based on relevance and adequacy. This would also mean an increase in the compliance cost for the operators of the search engine.
It is further argued that the individuals with the motivation and resources to pursue such requests would generally be politicians or business elites. This only furthers the cause of these individuals by censoring those links on the internet that portray them in the negative light and ensure that only flattering information is available to the public.
However, some critics are hopeful that, although google will now have to ‘forget’ certain information, it could still work with organisations like ChillingEffects.org that would list the metadata regarding these results. Therefore, although the results would be ‘forgotten’ by google, people will be informed of this act of ‘forgetting’!