How Will EU Countries Enforce the New “Right to be Forgotten”?
Starting on the 13th May 2014, according to the decision made by Europe’s highest court (the Court of Justice of the European Union, or ECJ), EU citizens will have the right to request for information to be removed if it appears to be “inadequate, irrelevant or no longer relevant”. The ruling specifically involves questions raised by the Spanish High Court over the case of the Spanish lawyer Mario Costeja. This ruling will have a direct effect on nearly 200 Spanish cases involving people who want to be “forgotten” online and whose requests have been stuck at the High Court until the present ECJ judgment in Luxembourg. The judgment gives citizens the right to select their historical data and eliminate anything they do not want other people to discover on the search engine. Present ruling gives people the right to sanitize their background by erasing links to public information.
Now European citizens have greater control of their data. The main question is how people can enforce these rules in their countries. There is an opinion that for any reasonable interpretation of the right to be forgotten, the enforcement of the right in the open internet is generally impossible. One approach is to require search operators and sharing services within the EU to filter references to forgotten information stored inside and outside the European Union.
But to make it as simple as possible, there are several issues to settle before declaring that the right has been violated: firstly, it is important that this right applies only to private individuals. Organizations cannot ask for links to be removed. It is not possible to request the removal of content, only that search engines do not provide links to it. The information has to create a misleading impression of a private individual, and it cannot be of public interest. In this case, and if these rights have been violated, private individuala are granted a right to apply to the court for protection of the “Right to be Forgotten”.
It is important to mention the judgment of the Court, which said that Google Spain is a subsidiary of Google Inc. on Spanish territory and, therefore, is considered an ‘establishment’. “The Court rejects the argument that the processing of personal data by Google Search is not carried out in the context of the activities of that establishment in Spain. “The Court holds, in this regard, that where such data are processed for the purposes of a search engine operated by an undertaking which, although it has its seat in a non-member State, has an establishment in a Member State, the processing is carried out ‘in the context of the activities’ of that establishment, within the meaning of the directive, if the establishment is intended to promote and sell, in the Member State in question, advertising space offered by the search engine in order to make the service offered by the engine profitable”.
So, in simpler terms, this judgment covers information about private citizens which is either out-of-date, creates a misleading impression or is of no public interest.
It remains to be seen how the EU member states will implement the ruling in their national legal systems, and whether national courts will conclude cases following the guidelines established by this landmark decision.
Full Text of the Judgment can be found on the following link
Piñera del Olmo deals with enquiries regarding the right to be forgotten. You can contact our office by writing to info@pineradelolmo.com, or call us at +34 93 514 39 97.