By Heini Järvinen

The noise, misunderstandings and confusion about the alleged “right to be forgotten” has increased in amplitude since the Court of Justice of the European Union (CJEU) issued its ruling on the so-called “Google case”. Like a politician’s use of statistics, the phrase  “right to be forgotten” has been used by critics of privacy law like drunks use lampposts – “more for support than illumination”.

Paradoxically enough, everybody has now become aware of what Mario Costeja González wanted to be deleted; “not because of Google, but because of the publication of the decision”, as Spanish academic José Luis Piñar Mañas specified.

The first consequences of this judgment have been felt already. On the one hand, EU netizens are already mentioning the decision when lodging complaints before National Data Protection Agencies, as Isabelle Falque-Pierrotin, chairwoman of the French Data Protection Agency, confirmed. On the other hand, Google has received thousands of removal requests. Accordingly, the company has taken the first steps to comply with the obligations derived from the European Court of Justice.

Google provided an online form to process complaints a few days ago. It was adopted as a provisional measure until further clarification comes from the experts of the Advisory Committee Google has appointed.For that, they shall provide their personal details, including their photo ID so as to verify the demand is not fraudulent. As the Court stated, not everything can be removed. In order to submit the removal application, Google requires the applicant to provide the URLs concerned and explain why they are “irrelevant, outdated, or otherwise inappropriate”, using a similar wording to the one expressed by the Court (cfr. para. 92).  In any case, some commentators suggest the removal will only take place in local Google sites, as per Google’s existing approach for de-indexing of material considered illegal or inappropriate in individual jurisdictions. As a general rule, Google imposes US law globally and all other national laws nationally.

In order for a search engine to decide to take action, it will have to take into account “the nature of the information in question and its sensitivity for the data subject’s private life and [the] interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life” (cfr. para. 81 of the decision). This balance between dignity, privacy and the right worries many experts in the field. However, this measure goes along with prior removal tools rendered available by Google, such as the one used for copyright infringements. Like in copyright cases, it is foreseen Google will inform when some results are not disclosed for legal compliance reasons.

For its part, the Article 29 Working Party (Art. 29 WP) discussed the consequences and issues of the judgment at its plenary on 3-4 June 2014. As a consequence, the Art. 29 WP shall issue some guidelines to harmonise the views of the EU data protection authorities on the implementation of the judgment. That way, other companies like Bing and Yahoo, which have been cautious in its statements following the ‘Google case’, may find further inspiration on the measures to adopt to comply with EU law.

Search removal request under European Data Protection law
https://support.google.com/legal/contact/lr_eudpa?product=websearch

How Google’s new “Right To Be Forgotten” form works: An explainer (30.05.2014)
http://searchengineland.com/google-right-to-be-forgotten-form-192837

The Google case: a better privacy? (only in Spanish, 15.05.2014)
http://elpais.com/elpais/2014/05/14/opinion/1400086304_243572.html

Google takes steps to comply with EU’s “right to be forgotten” ruling (29.05.2014)
http://www.reuters.com/article/2014/05/30/us-google-eu-idUSKBN0EA04O20140530

Google sets up “right to be forgotten” form after EU ruling (30.05.2014)
http://www.bbc.com/news/technology-27631001

Right to be forgotten? Not that easy (29.05.2014)
http://www.nytimes.com/2014/05/30/business/international/on-the-internet-the-right-to-forget-vs-the-right-to-know.html?ref=technology&_r=0

Article 29 Working Party
http://ec.europa.eu/justice/data-protection/article-29/index_en.htm

(Contribution by Maryant Fernandez Perez, EDRi intern)