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The Right to Remember: On the WP29’s Opinion concerning the Right to Be Forgotten Ruling & the Balancing of the Freedom of Expression

10 Dec , 2014  | by:

Two weeks ago the Article 29 Working Party (WP29) issued Guidelines on the Implementation of Google Spain judgment.

Let’s have a look at how often the WP29 elaborates on the delicate balance between oblivion, erasure or forgetting and the individuals’ right to freedom of expression.

The wording “freedom of expression” finds its way into the opinion three times. The first time it is mentioned in the Executive Summary under “Limited impact of de-listing on the access to information”. The opinion states that:

 “In practice, the impact of the de-listing on individuals’ rights to freedom of expression and access to information will prove to be very limited. When assessing the relevant circumstances, European Data Protection Authorities (hereinafter: DPAs) will systematically take into account the interest of the public in having access to the information. If the interest of the public overrides the rights of the data subject, de-listing will not be appropriate.”

Do the last two sentences mean that DPAs will be involved in the “de-linking” processes? So far, this task was handed over to search engines who operate on a “notice and take down” basis. From an economic point of view it would make sense for search engines to rather “take down” more links than less, in order to avoid potential litigation…

The second and third time the term “freedom of expression” is mentioned is in respect with the classification of search engines as data controllers. It states:

“8. The interest of search engines in processing personal data is economic. But there is also an interest of internet users in receiving the information using the search engines. In that sense, the fundamental right of freedom of expression, understood as “the freedom to receive and impart information and ideas” in Article 11 of the European Charter of Fundamental Rights, has to be taken into consideration when assessing data subjects’ requests.”

The question here is “who” has to take Art. 11 of the Charter into consideration? The search engines with their economic interest in processing personal data?  Paragraph 9 below infers that:

“9. The impact of the exercise of individuals’ rights on the freedom of expression of original publishers and users will generally be very limited. Search engines must take the interest of the public into account in having access to the information in their assessment of the circumstances surrounding each request. Results should not be de-listed if the interest of the public in having access to that information prevails. But even when a particular search result is de-listed, the content on the source website is still available and the information may still be accessible through a search engine using other search terms.”

Again the WP29 states that the impact on the freedom of expression will be “very limited”. First, I wonder how European DPAs can be so sure about the “limited impact”. What is the basis for such a statement? Why are they so sure about that? De-linking is in fact not the same as deleting the link all together, yet our consumption of information has changed and if negative information about a person doesn’t appear on search engines we assume that the person has not been involved in any “funny business”. In a sense, when one deprives a consumer of such (presumably negative) information one puts him in a worse position than before since he now only has access to the “positive” or “neutral” information that the counterpart wants him to see. Don’t the DPAs here also have the task to protect information consumers?

(Side note: I wrote above that the consumption of information has changed, but has it really? In a library for example, if one would take away the catalogue cards (which indicate in which shelf a book is located) without taking the book away from the shelf (a kind of “de-linking”), one would have a similar situation: a library user could find the book if he knew in which shelf to look for it. Yet, most users would not find the information.)

Secondly, the task of “forgetting” is handed over to search engines (see above and Para. 9). Since Google is the dominant search engine (especially in Europe) it is fair to assume that users trust Google, even when it comes to this new task of “de-listing upon request”. Yet, so far courts took on this role and I am not sure why one would want to change that. In fact, the right of erasure, as provided for in national data protection laws, has rarely been the only legal ground in courts and it has the potential to neglect the thorough balancing of conflicting interests. (See for case law on the balancing of conflicting interests with respect to oblivion and erasure our article in JIPITEC 5 (2)).

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