May 19, 2014
Recently, the European Court of Justice, the highest court in the European Union, recognized the individual’s “right to be forgotten.” The court ordered Google and all other search engines to cooperate with individuals to remove links in search results that lead to material that the individuals would like to delete. This decision can have significant impact on the online search process and empowers individuals to control more actively their online presence.
This case was initiated by a man in Spain. He sought removal of online search links that led to a sixteen year old news article describing how his home was placed up for auction sale as a result of his failure to pay taxes. The man apparently believed that the article was no longer relevant and was embarrassing for him.
In a ruling that binds all twenty-eight member nations of the European Community, the European Court of Justice concluded that the man’s request for removal of search engine links leading to the article in question was reasonable. It determined that there is a right to be forgotten and that online information intermediaries such as search engines have an obligation to cooperate with individuals to enforce that right.
Some advocates of empowerment of individuals with regard to their personal information and online presence applaud this decision. They believe that the court’s action in this case provides an important foundation enabling individuals to take greater control over their online “footprint.”
Other observers, however, have expressed significant reservations about the court’s recognition of a right to be forgotten. They argue that if this right is exercised by public figures and important decision-makers, access to information that the public should have a right to know can be impaired.
Other critics of the decision contend that it places the burden of enforcing the right to be forgotten on inappropriate parties. They suggest that search engines and other online information intermediaries should not be held responsible for the content that the help to find. These critics claim that, if there is a right to be forgotten, the burden of helping individuals to enforce that right should fall on the parties who actually publish the information in question, not the intermediaries who facilitate access to that information.
The process for requesting search engine deletion of search links is not yet entirely clear. It appears that individuals will contact the search engines directly, identify the targeted links, and request their deletion. Presumably, the search engines will then make some factual determination as to whether the request is legitimate and appropriate.
The scope of the court’s ruling is not yet clear. For example, it may be possible for people outside of the European Community to exercise the right to be forgotten if the links in question are accessible to Internet users in Europe.
Enhancing the ability of individuals to assert greater control over online information about themselves is generally beneficial. This court’s decision to place the bulk of the burden for enforcing that right on Internet search engines seems, however, to be unreasonable.