In a landmark European legal case, Google (whose EU HQ is in Dublin, Ireland) has been told by the EU’s top court that they do not have to apply the right to be forgotten globally.
Basically meaning, Google only has to removed links from its search results in Europe and not elsewhere, once they have received the a formal request to do so.
The ruling stems from a dispute between Google and a French privacy regulator.
“Currently, there is no obligation under EU law, for a search engine operator who grants a request for de-referencing made by a data subject… to carry out such a de-referencing on all the versions of its search engine,” the European Court of Justice ruling said.
Google had been supported by Microsoft, Wikipedia’s owner the Wikimedia Foundation, the non-profit Reporters Committee for Freedom of the Press, and the UK freedom of expression campaign group Article 19.
ECJ adviser Maciej Szpunar had also concluded that the right to be forgotten be limited to Europe in a non-binding recommendation to the court earlier this year.
There has been a lot of interest in the case since, had the ruling gone the other way, it could have been viewed as an attempt by Europe to police a US tech giant beyond the EU’s borders.
Those wanting to read the full ruling were frustrated in the hour following its release because the ECJ’s own website crashed.
The court also issued a related second ruling, which said that links do not automatically have to be removed just because they contain information about a person’s sex life or a criminal conviction.
Instead, it ruled that such listings could be kept where “strictly necessary” for people’s freedom of information rights to be preserved. However, it indicated a high threshold should be applied and that such results should fall down search result listings over time.
“The obligation to demote search results in some cases is particularly interesting as an example of the courts directly interfering with the algorithms used by big tech companies,” commented Peter Church from the law firm Linklaters.
Google has applied the right to be forgotten since May 2014, when the ECJ first determined that under some circumstances European citizens could force search firms to delist webpages containing sensitive information about them from queries made using their names.
The idea is to hide sensitive information – such the fact a person once committed a criminal offence or had an extra-marital affair – if the details are judged to be “inadequate, irrelevant or no longer relevant or excessive”.
Google has said that since that time it has received more than 845,000 requests to remove a total of 3.3 million web addresses, with about 45% of the links ultimately getting delisted.
This involves both removing the results from its European sites – such as Google.fr, Google.co.uk and Google.de – as well as restricting results from its other sites – such as Google.com – if it detects a search is being carried out from within Europe.
However, this means that users can still circumvent the action if they use a virtual private network (VPN) or other tool to mask their location.
Notably, the ECJ ruling said that delistings must “be accompanied by measures which effectively prevent or, at the very least, seriously discourage an internet user” from being able to access the results from one of Google’s non-EU sites.
“It will be for the national court to ascertain whether the measures put in place by Google Inc meet those requirements.”
News sites, including the BBC and RTE, are exempt from the rule, but may find that links to some of their old articles no longer appear on Google or other search engines.
Obviously, Brexit is one area of interest in this judgement and the right to be forgotten should still apply to the UK even if it leaves the EU, with or without a deal, at least in the short to medium-term.
From a North of Ireland point of view there might be interest in this judgement from a super-injunction point of view – Media reports suggest there is a number of them knocking about keeping personal information from the public via a super-injunction, which is a type of injunction that prevents publication of information that is in issue and also prevents the reporting of the fact that the injunction exists at all.
Due to their very nature media organisations are not able to report who has obtained a superinjunction without being in contempt of court. The term super-injunction has sometimes been used imprecisely in the media to refer to any anonymised privacy injunction preventing publication of private information.
Critics of super-injunctions have argued that they stifle free speech, that they are ineffective as they can be breached using the Internet and social media and that the taking out of an injunction can have the unintended consequence of publicising the information more widely, a phenomenon known as the Streisand effect.
