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How Will the Right to be Forgotten Work in the Real World?

Wednesday, 2 July 2014

The huge power and limited responsibility that giant tech companies are perceived to wield over individuals’ private information has faced a major challenge. The full ramifications of the European Court of Justice’s recent ruling against Google are yet to be fully felt but it is seen by many as a first step towards a regulatory framework for the internet.

The effects are likely to be far reaching. For example, most of the commentary has focused heavily on historic information about parties that are still alive. However, the ruling is also likely to affect the management of the online legacies of those who have passed away. Wills and probate lawyers can attest to the fact that this is a growing issue.

The scope for this ruling to affect all personal information that is available online is the reason it has generated so much interest from privacy advocates, freedom of expression advocates and anti-censorship groups.

Free Speech Versus Individual Privacy

In many ways the debates that have raged across the internet following the ECJ’s ruling are nothing new. Media companies operating newspapers or television stations have always had to balance the rights of individuals with the wider public interest and freedom of speech.

The difference between tech companies, search engines in particular, and traditional forms of media business is the power that they provide searchers to uncover even the most minor, dated or even insignificant pieces of information about other private citizens with little effort.

The extent of the information available online and the ability of internet companies to benefit from that information commercially, with little regard to the effects on the individual, has so far gone relatively unchallenged and been largely unregulated.

The global reach of the internet creates opportunity for regulatory arbitrage if unilateral regulation is implemented at the national level. Rightly or wrongly, and despite the likelihood of its ruling being ignored outside the EU, the ECJ has taken a first step in giving citizens some say in how the free market in personal information works.

Protecting Private Information in Practice

The ECJ’s ruling means that private individuals within the EU now have the right to request that links generated by a search engine are removed subject to a public interest test. In practice this means that search engines such as Google have had to implement systems to manage takedown requests.

Potentially tech companies will remove links as their default practice to avoid the costs of actually adjudicating decisions on an individual basis. Theoretically though, they might choose to act as judge and jury by considering each case on its merits. How would these examples fare?

· A non-celebrity graduate applying for new jobs asks for links to embarrassing university photographs to be removed.

· A paedophile asks for a link to an article about their conviction and sentencing four years ago to be removed.

· A politician asks for links to stories related to the expenses scandal to be removed.

· A politician asks for links to stories about an affair they had before entering parliament to be removed.

· A family asks for links to photographs and a minor news story from several years ago about a recently deceased relative to be removed.

The first example would seem to lack any public interest whatsoever. The other examples may all have an element of public interest but the extent of that interest differs remarkably. Adjudicating these issues fairly and consistently is unlikely to be a simple task.

Comment

There is likely to be considerable uncertainty over how the ECJ’s judgement will work in practice. Individuals requiring specialist advice should contact Neil Acheson-Gray by email nacheson-gray@rollingsons.co.uk or telephone 0207 611 4848.

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