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The right to be forgotten

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The recent court judgement forcing Google to delete a link to a story revealing a Spanish man’s history of insolvency has reignited an age-old debate about the balance between privacy and freedom of expression.

When Mario Gonzalez, a 58-year-old lawyer and calligrapher from northwest Spain, launched a landmark legal action| against Google six years ago, he opened the proverbial Pandora’s Box.

By securing the “right to be forgotten” on the basis the story was outdated and no longer relevant, Gonzalez laid the grounds for a protracted legal battle with one of the world’s largest and most powerful companies.

Internet giant Google| has come off second best in this fight, with the European Court of Justice| ruling earlier this year that search engines are effectively “data controllers” and therefore bound by EU Data Protection| laws.

Dr Orla Lynskey, a digital rights specialist from LSE’s Department of Law, says the ruling is significant for a number of reasons.

“Google now has to determine, on a case by case basis, whether the information in a story link is firstly compatible with the EU Data Protection rules. If not, whether there are still legitimate reasons to retain the link based on public interest,” Dr Lynskey says.

Within six weeks of the judgement, handed down on 13 May, Google had received more than 70,000 requests to have story links removed, requiring staff to review over 250,000 URLs.

France led the campaign for privacy, with more than 14,000 requests by the end of June, followed by Germany (12,678), the United Kingdom (8,497), Spain (6176) and Italy (5,934).

The court has clearly stated that its findings apply to search engines, rather than the original publishers of the information.

There are two reasons for this distinction: first of all, Google has the power to project its results to a mass audience; and secondly, search results appear in an aggregated form in Google so it is not just a case of one link appearing in isolation.

“While the court’s distinction has been criticised, it is consistent with the idea in other areas of law that companies with significant market power, such as Google, have special responsibilities to uphold,” Dr Lynskey says.

The ruling is not absolute because it only extends to searches originating from Europe and at this stage the US arm of Google does not fall within the scope of the EU’s Data Protection directive.

However, there will be a significant financial cost to the search engine which could also embrace the likes of Wikipedia.

In defence of the ruling, the Justice Commissioner noted that Google reaped economic benefits from targeted advertising based on search results, and those benefits came with responsibilities.

Dr Lynskey says despite the cost of complying with the new guidelines, Google’s reputation as an effective search engine will not suffer because only a limited amount of information on its site is impacted by the court judgement.

But there is no doubt the court’s decision has established a default rule in Europe, with data protection and privacy triumphing over freedom of expression.

“This puts the EU at complete odds with the United States, which explains why search results will produce different results in the two continents,” Dr Lynskey says.

The EU ruling has also been publicly opposed by the UK’s House of Lords, which argues that it is an accepted part of internet practice to access personal information about individuals, including those not in the public eye.

Dr Lynskey says the judgement marks a distinct legal shift in Europe, implying that privacy is not just an individual’s right, but of value to society as a whole.

“You could say this type of right is needed for a number of reasons. It means, for example, that a throwaway line expressed by a student in their university days does not come back to haunt them 10 years later when applying for a job.”

Posted: 1 September 2014

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Dr Lynskey is an Assistant Professor in Law at LSE, whose primary field of interest is data protection law. She has authored a number of papers on this topic and has a new book coming out in 2015: The Foundations of EU Data Protection Law. For more details, visit her website|.

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