What is the right to be forgotten?The right to be forgotten is defined by the Independent Commissioners Office as follows:
“Under Article 17 of the GDPR individuals have the right to have personal data erased. This is also known as the ‘right to be forgotten’. The right is not absolute and only applies in certain circumstances.” – ICOUnder Article 17, individuals can make “a request for erasure” verbally or in writing for sensitive information about themselves to be removed from any site and from the SERPs entirely. The right has been invoked by individuals for instances such as professional wrongdoing, crimes committed and adultery. The Article applies to all online sources of information, not just to Google or other search engines. An individual has the right to have their personal data erased if:
- The personal data no longer holds a purpose
- The use of the personal data was on the basis of an individual providing their consent, however the individual is now withdrawing their consent
- In instances where data is being processed for marketing purposes, the individual opts out of these purposes
- The processing of the data relies on legitimate interest and the individual objects to the processing of their data, and there is no overriding legitimate interest to continue this processing
- The data has been processed unlawfully
- The data has been processed in order to offer information society services to a child
What does the ruling mean for Google?Back in 2014, a case was brought to the European Court of Justice by the French Privacy Watchdog CNIL, the ruling of which required Google to remove links that contained sensitive information about a person at the individual’s request, inside the EU. CNIL later fined Google €100,000 (£88,000) on the grounds that Google was seen to be refusing to comply with the ruling. Google contested the fine at France’s Council of State who then consulted the European Court of Justice. Google has removed 45% of the 3.3 million links from 845,501 requests received. So why haven’t 100% of requests been de-listed? Google has said in their transparency report that they will not delist links that they believe to be strongly in the public interest. The search giant acknowledged that:
“Determining whether content is in the public interest is complex and may mean considering many diverse factors, including, but not limited to, whether the content relates to the requester’s professional life, a past crime, political office, position in public life, or whether the content is self-authored content, consists of government documents or is journalistic in nature”.The most recent court battle has been in relation to whether or not Google needs to comply to the ruling globally or just inside the EU. The ruling ultimately landed in favour of Google – when Google receives a request under the “Right to be forgotten”, references only need to be removed from the EU results, not globally. Fundamentally, this means that EU search results will differ from search results displayed to the rest of the world by Google. However, not all requests need to be accepted or fulfilled – Google still holds the right to reject an erasure request.
Why Only the EU?The ECJ (European Court of Justice) has said that “Currently, there is no obligation under EU law, for a search engine operator who grants a request for de-referencing made by a data subject… to carry out such a de-referencing on all the versions of its search engine. However, EU law requires a search engine operator to carry out such a de-referencing on the versions of its search engine corresponding to all the [EU] member states”.The reason the ruling only applies to the EU is due to pre-existing EU laws that are in place. If, for example, Australia invoked the same law, the same argument would apply to Australian search results, too. The thought process behind this is to ensure that no one country can start to restrict the information that other populaces have access to.
Google’s CommentsGoogle, as well as press freedom groups and human rights groups, have cautioned that less democreatic parts of the world could abuse this ‘Right to be forgotten’. In this blog post from 2017, Google said that
“search engines should continue to balance the public interest in access to information with the individual’s right to privacy.”The main concern being that individuals or even entire governments could request for any publication alerting the world to human rights atrocities, to remove said publications from the public domain. After the ruling was announced, Google said that “Since 2014, we’ve worked hard to implement the right to be forgotten in Europe, and to strike a sensible balance between people’s rights of access to information and privacy. It’s good to see that the court agreed with our arguments.”.Google has maintained time and again that they do their best not to play God with the SERPs. Even when searching “idiot” produced images of Donald Trump, Google came under fire from Republican figureheads in the American government, they still did not interfere with search results. Additionally, when asked whether he was ever tempted to remove anti-Semitic results from the SERPs, Sergey Brin explained that there is no temptation to remove any search result, regardless of content. If those are the search results, those are the results.Whilst the ruling means that Google does not need to apply the law to search results on a global scale, it’s understandable that those users in the EU countries could be left feeling that the information that they’re given is heavily censored. The other side of the ruling also needs to be considered, though. Afterall we are all human and all make mistakes. Should we not all have the opportunity to start again with an entirely clean slate? Or to even have our own wrongdoings forgotten after a reasonable period of time has passed? The real question here is where to draw the line. At what point does an erasure request interfere with the public interest? By enacting the law in the first place, regardless of whether the implementation of said law is within the EU, or globally, are we placing too much power in the hands of Google to decide what people do and don’t have access to? The initial ruling in 2014 was not one that was enacted or prompted by Google in the first place. In this case, Google are quite literally following the rules and abiding by laws. The law doesn’t only apply to Google, it applies to any and all search engines and websites that are available in the EU. Ultimately, the ruling is acting in the interests of the futures of individuals in order to try and enable individuals to re-build a life after making mistakes and Google is trying to adhere to these laws whilst still providing unbiased, valuable and informative search results.