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24th Oct 2020

Freedom of expression complicates EU law on 'right to be forgotten'

  • Google has received 143,000 requests to remove names from search results in the past five months (Photo: Rosa Jimenez Cano)

Justice ministers are struggling to balance the right to freedom of expression and the right to be forgotten in the EU’s data protection reform bill.

The political debate on Friday (10 October) in Luxembourg surfaced following a ‘right to be forgotten’ ruling in May against Google by the European Court of Justice (ECJ).

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In the ruling, the Court concluded it was reasonable to ask Google to amend searches based on a person’s name if the data is irrelevant, out of date, inaccurate, or an invasion of privacy.

Google has so far received 143,000 requests, related to 491,000 links, to remove names from search results.

The ECJ decision only affects search requests based on a person’s name. The content at source remains untouched.

But critics like Wikipedia founder Jimmy Wales described the decision as "one of the most wide-sweeping internet censorship rulings that I've ever seen".

Others say it produced clarity on issues of jurisdiction but did not go far enough in explaining how Google – or other data controllers – should handle people’s requests to have their names swiped from search engine results in the first place.

"We can't leave it up to those who run search engines to take a final decision on the balance between these different fundamental rights," said Austria's justice minister. Ireland, where Google has its European head quarters, also doesn't like the idea.

For the European Commission, the ECJ ruling does not pose a problem with right to be forgotten in the draft bill. It notes the right is already included in the proposed regulation along with an exception on the freedom of expression.

EU justice commissioner Martine Reicherts also noted the EU’s main privacy regulatory body, the “Article 29” Working Group, is coming up with operational guidelines for big companies like Google on how best to put the court’s decision into practice.

“This will strengthen legal certainty, both for search engines and individuals, and will guarantee coherence,” she said

Not everyone is convinced.

The justice ministers differed on to what extent the ruling will affect the EU data protection regulation currently under discussion at member-state level.

The heavily lobbied bill, which was tabled in early 2012, is set for adoption next year but has run into problems among national governments. The EU Italian presidency is hoping to reach an agreement by the end of the year in order to start formal talks with European Parliament.

On Friday, the ministers managed to come to a general agreement on parts of the text in terms of international data transfers and exempting businesses with fewer than 250 employees.

But member states like the UK still want to downgrade the bill into a directive, a weaker legal instrument compared to a regulation.

"We need to be careful about creating rights that are not deliverable in practice as well as wider regulatory burdens," the British minister said.

As for the ECJ ruling, the question remains if additional rules or clarifications based on the court’s judgment should be inserted into the bill.

Germany, Luxembourg, Poland, Portugal, the UK and others oppose referencing the court’s judgment in the bill.

“To us this could be a dangerous precedent for the future and could perhaps negatively affect the freedom of speech,” said Poland’s justice minister.

Instead, Germany wants more text in the bill to guarantee the freedom of expression by lifting the article from Charter of Fundamental rights and inserting “it into our data protection regulation.” Lithuania backs this idea.

France also expressed reservations, noting that the right to be forgotten cannot be an absolute right.

“How can we respect our citizens right to be forgotten without standing in the way of the freedom of expression and the freedom of the press at the same time?,” said the French minister.

Spain, which brought the case against Google in May, backs the ECJ ruling and says it is "no way incompatible" with the right to the freedom of expression and information.

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