European Court of Justice

‘Right to be forgotten’ to return to European court

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The European Court of Justice (ECJ) will once again debate the right for individuals to demand that Google and other search engine providers remove select web search results which could be damaging.

The new case has arisen since Google refused requests from four individuals to remove incriminating or embarrassing articles.

The court previously ruled against Google in 2014, after a legal case was raised against Google and a Spanish newspaper by a man complaining that information about his repossessed home – which appeared in Google search results – infringed his privacy rights. His case was referred to the ECJ, which in 2014 ruled that Google was subject to EU data protection rules, and that individuals have the right to be forgotten (although this right is not absolute).

According to its transparency report, Google has received over 720,000 removal requests since the ruling. It was accidentally revealed in 2015 that 5 per cent of these right-to-be-forgotten requests were from criminals, politicians and other high-profile public figures. Overall, nearly half (43 per cent) of requests are accepted.

The four individuals reviving the case initially appealed to the French data protection authority, the CNIL. The CNIL agreed with Google’s decision, prompting them to take the case to France’s supreme administrative court, the Conseil d’Etat.

The court announced in a statement that the requests concerned articles about the criminal convictions of one applicant, the child abuse convictions of another, an explicit video revealing a relationship with a “person holding public office”, and an article about the suicide of a member of the Church of Scientology, which was requested to be withdrawn by a PR manager for the Church.

The Conseil d’Etat said that “serious issues” had arisen with regard to the interpretation of European law in the case, and they referred it to the ECJ. The ECJ is the highest court in the European Union.

“Such issues are in relation with the obligations applying to the operator of a search engine with regard to web pages that contain sensitive data, when collecting and processing such information is illegal or very narrowly framed by legislation, on the grounds of its content relating to sexual orientations, political, religious or philosophical opinions, criminal offences, convictions or safety measures,” the Conseil d’Etat said.

In a blog post, Peter Fleischer, Google’s senior privacy counsel, said that the ECJ had to decide whether sensitive personal data should always outweigh public interest.

“Requiring automatic delisting from search engines, without any public interest balancing test, risks creating a dangerous loophole. Such a loophole would enable anyone to demand removal of links that should remain up in the public interest, simply by claiming they contain some element of sensitive personal data.”

“We will be advocating strongly for the public interest balancing test to apply to all types of delisting requests – including those containing sensitive personal data,” he said.

A date for the hearing has not yet been set.

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