The European Union Committee of the UK Parliament released a report on the implications of the European Court of Justice’s (ECJ) recent Google Spain decision: "EU Data Protection Law: a 'Right to be Forgotten'?".
The Committee came out against the current set of proposals related to data protection that are being negotiated in the EU and recommended that the UK "Government should persevere in their stated intention of ensuring that the Regulation no longer includes any provision on the lines of the Commission's 'right to be forgotten' or the European Parliament's 'right to erasure'." The Committee noted that the Data Protection Directive of 1995 and the ECJ interpretation of the Directive in Google Spain do not reflect "the current state of communications service provision, where global access to detailed personal information has become part of the way of life." In the Committee's view, "[i]t is no longer reasonable or even possible for the right to privacy to allow data subjects a right to remove links to data which are accurate and lawfully available." Therefore, the Committee stated that "the 'right to be forgotten' as it is in the Commission's proposal, and a fortiori as proposed to be amended by the Parliament, must go. It is misguided in principle and unworkable in practice."
In particular, the Committee recommended that the term “data controller” should not be extended, in any new European Regulation, to search engines or users. The Committee highlighted that "there are strong arguments for saying that search engines should not be classed as data controllers" (Paragraphs 26-42 and 55 of the Report). In this regard, the Report discussed in details the feasibility for search engines of complying with the requests received. The Committee concluded that in fact it may be in practice possible for Google to comply with the ECJ ruling but compliance may be an insurmountable burden for smaller search engines. Smaller search engines, might "automatically withdraw links to any material objected to because they would not have the resources to examine requests on a case by case basis [ . . . ] [t]his would effectively allow any individual an uncontested right of censorship." Additionally, the Committee was especially concerned with "a further question, whether it is right that the judgment on issues such as this should be left to Google and other search engines." On this last point, the Committee concluded:
[i]t is wrong in principle to leave to search engines the task of deciding many thousands of individual cases against criteria as vague as "particular reasons, such as the role played by the data subject in public life". We emphasise again the likelihood that different search engines would come to different and conflicting conclusions on a request for deletion of links.
However, the Report also anticipated that the UK view may not be shared by other Member States. The Report mentioned that, on July 3, 2014 the Italian Presidency circulated to the Working Group on Information Exchange and Data Protection a note entitled "Right to be forgotten and the Google judgment" which, as the Committee noted, "seem[s] to assume that the law as set out by the Court in its interpretation of the Directive must continue to be the law as stated in the draft Regulation." The UK Committee stated that "this is a profound error" and called for the legislators to replace the current law with a better law, if the current law as interpreted by the ECJ is a bad law. Alalalai...the "right to be forgotten" is expected to become a hot battlefield in the next few months in Europe.
Date published: July 31, 2014