EU - Right to Be Forgotten

On May 13th of 2014, the Court of Justice of the European Union (CJEU) issued a ruling in the case of Google Spain SL, Google Inc. v Agencia Espanola de Proteccion de Datos, Mario Costeja Gonzalez

This case, and its implications, were typically referred to as having to do with a "right to be forgotten" since the plaintiff, Gonzalez, wanted to have the links to certain 1998 newspaper articles that mentioned him removed from the Google Search results that appeared after a search for his name. In essence, he wanted Google to "forget" that those articles existed.

Despite an advisory opinion from Advocate General Niilo Jääskinen on 25 June 2013 stating that Google was not a "data controller" and that even were they to be considered as such, the public's interest in freedom of expression and information should take precedence over an individuals desire to be "forgotten", the ECJ ruled in Gonzalez's favor, stating that:

" the activity of a search engine . . . must be classified as ‘processing of personal data."

"The operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful."

and most saliently,

"data subject may, in the light of his fundamental rights under Articles 7 and 8 of the Charter, request that the information in question no longer be made available to the general public on account of its inclusion in such a list of results, those rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in having access to that information upon a search relating to the data subject’s name. However, that would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of its inclusion in the list of results, access to the information in question."

Note that the court made it clear that the articles themselves could remain on the newspaper's website, it was just that Google, or another search engine, could not return the links to those articles in a search for Gonzalez's name.

You can find a copy of the CJEU's press release here and a copy of the full decision here.

Following this decision, Google began working with European regulators to create a plan for complying with the decision.

In early June 2014, Google offered an online form that those wishing to be forgotten could fill out. As of June 2014, this form is only available to citizens of the EU.

Those requesting the removal of links had to provide a copy of a photo ID, in order to "prevent fraudulent removal requests from people impersonating others, trying to harm competitors, or improperly seeking to suppress legal information."

As of Thursday, June 26, 2014, Google began actually removing links from its search results based on the requests it has received. In order to maintain the anonymity of the requesters, Google is placing the following warning at the bottom of any search that appears to contain a proper name, rather than only at the bottom of affected searches.

This warning only appears on searches from Google's EU sites, such as google.de, google.es, etc.

The version of this warning on the google.co.uk site reads: "Some results may have been removed under data protection law in Europe. Learn more."

Clicking through gives the following explanation.
"How are you implementing the recent Court of Justice of the European Union (CJEU) decision on the right to be forgotten?

The recent ruling by the Court of Justice of the European Union has profound consequences for search engines in Europe. The court found that certain users have the right to ask search engines like Google to remove results for queries that include the person's name. To qualify, the results shown would need to be inadequate, irrelevant, no longer relevant, or excessive.

Since this ruling was published on 13 May 2014, we've been working around the clock to comply. This is a complicated process because we need to assess each individual request and balance the rights of the individual to control his or her personal data with the public's right to know and distribute information.

If you have a removal request, please fill out this web form. You'll receive an automatic reply confirming that we have received your request. We will then assess your case – please note that this may take some time because we have already received many such requests. In evaluating your request, we will look at whether the results include outdated information about your private life. We'll also look at whether there's a public interest in the information remaining in our search results – for example, if it relates to financial scams, professional malpractice, criminal convictions or your public conduct as a government official (elected or unelected). These are difficult judgements and as a private organisation, we may not be in a good position to decide on your case. If you disagree with our decision you can contact your local DPA.

We look forward to working closely with data protection authorities and others over the coming months as we refine our approach. The CJEU's ruling constitutes a significant change for search engines. While we are concerned about its impact, we also believe that it's important to respect the Court's judgement and we are working hard to devise a process that complies with the law.

When you search for a name, you may see a notice that says that results may have been modified in accordance with data protection law in Europe. We’re showing this notice in Europe when a user searches for most names, not just pages that have been affected by a removal. "

Given the new and rapidly changing nature of this subject, the related FAQs are still being developed, and we anticipate that both the questions and answers will be updated and added to periodically.

Some further reading on this subject: