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At the end of January 2012, the European Commissioner for Justice, Fundamental Rights, and Citizenship, Viviane Reding, announced the European Commission’s proposal to create a sweeping new privacy right—the “right to be forgotten.” In Europe, the intellectual roots of the right to be forgotten can be found in French law, which recognizes le droit àl’oubli - or the “right of oblivion”- a right that allows a convicted criminal who has served his time and been rehabilitated to object to the publication of the facts of his conviction and incarceration. In America, by contrast, publication of someone’s criminal history is protected by the First Amendment, leading Wikipedia to resist the efforts by two Germans convicted of murdering a famous actor to remove their criminal history from the actor’s Wikipedia page.

Reding articulated the core provision of the “right to be forgotten”: “If an individual no longer wants his personal data to be processed or stored by a data controller, and if there is no legitimate reason for keeping it, the data should be removed from their system.”[1]

In its ruling of 13th May 2014 the EU Court said:

(a)           On the territoriality of EU rules:

Even if the physical server of a company processing data is located outside Europe, EU rules apply to search engine operators if they have a branch or a sub­sidiary in a Member State;

(b)          On the applicability of EU data protection rules to a search engine:

Search engines are con­trollers of personal data. Google can therefore not escape its responsibilities before European law when handling personal data by saying it is a search engine. EU data protection law applies and so does the right to be forgotten.

(c)           On the“Right to be Forgotten:”

Individuals have the right - under certain conditions - to ask search engines to remove links with personal information about them. This applies where the information is inaccurate, inadequate, irrelevant or excessive for the purposes of the data processing (para 93 of the ruling). The court found that in this particular case the interference with a person’s right to data protection could not be justified merely by economic interest of the search engine. At the same time, the court explicitly clarified that the right to be forgotten is not absolute but will always need to be balanced against other fundamental rights, such as the freedom of expression and of the media (para 85 of the ruling). A case by case statement is needed considering the type of information in question, its sensitivity for individual’s private life and the interest of the public in having access to that information. The role the person requesting the deletion plays in public life might also be relevant.

Results of the Decision

As a result of the decision, Google has implemented ‘a form of right to oblivion’ for European users of its search engine.

Among the first candidates coming forward, a few days after the court decision, there have been politicians eager not to see their name associated with old sexcases, cyber-stalkers or doctors who want to see it go bad reviews left by former patients on the Internet.[2]

It is not clear when Google will begin to actually remove any links, and the ruling does not mean that information itself must be taken down, just the link in search results.

Yahoo Inc, Yahoo.o which also operates a search engine in Europe, has previously said it is "carefully reviewing" the decision to assess the impact for its business and its users. Microsoft, which operates the Bing search engine, has previously declined to comment on the ruling.[3]

Our Experience

At Adjustment by lecocqassociate, we deal with various scenarios of reputation management for brands and individuals. Our expert team of lawyers, DPOs (Data Protection Officers), researchers, designers, content writers, techies and business developers will help you find the right solution at the right time to counter the issue.

If you would like to know more information on our adjustment services or to conduct a risk assessment, please

References

[1] http://www.stanfordlawreview.org/online/privacy-paradox/right-to-be-forgotten

[2] http://www.france24.com/fr/20140530-droit-oubli-formulaire-google-resultat-recherche-europe-cjue-justice/

[3] http://www.reuters.com/article/2014/05/30/us-google-eu-idUSKBN0EA04O20140530

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