Opinion: The Right to Be Forgotten: A Good Thing?

This week’s decision of the Court of Justice of the European Union in a case concerning proceedings brought by a Spanish national against Google is already being widely heralded as creating ‘the right to be forgotten’. At the time of writing we understand that Google (for one) regards the decision as binding (albeit wrong), and is working on a mechanism to implement the decision, which could come into being in the coming weeks. The judgment makes it clear that:

• The operator of a search engine is obliged to remove from the list of search results displayed following a search made on the basis of a person’s name, links to web pages published by third parties and containing information relating to that person, even when its publication is otherwise lawful; and that,
• An individual can request that the information in question be removed notwithstanding the economic interest of the operator of the search engine and the interest of the general public in having access to that information upon a search relating to the data subject’s name unless it is justified for the information to remain available based on the “preponderant interest” of the public in having access to the information in question.

Of course there are risks involved, however, isn’t this decision a good thing and long overdue? For example, why should a person who had a photograph taken of them in an embarrassing situation as a teenager have that image haunt them for the rest of their life? Why should something a person said or did casually but foolishly when they were twenty years of age affect their future prospects forever? Why should a minor indiscretion be a continual thorn in a person’s side, in perpetuity? What about forgiveness and rehabilitation? Most people are unlikely to be able to honestly claim that everything they have ever done or said in the lives would stand the test of scrutiny.

Of course, freedom of speech and access to information is extremely important, but that is why a public interest test has been built in. The public interest test is designed to ensure that facts which ought to remain widely available are not removed. Quite how Google (and others) are going to be able to manage the process, which is likely to take up significant resources, and, how they will be able to determine what should or shouldn’t be deleted, are at present the biggest questions. Maybe an independent body needs to be set up to deal with complaints. Ultimately, the courts in each jurisdiction are likely to shape the direction of future travel if complaints fail to be resolved satisfactorily.

For far too long search companies have attempted to hide behind the argument that they are not the publishers of the information in question and that they simply index what’s out there. But that was always too simplistic and self-serving an interpretation of the position. Of course, ideally, in appropriate circumstances, the actual content should be removed at source, not just the link to it, but that isn’t always possible for many reasons. Search engines are the primary way that people find information. Without search engines, in most cases, the underlying material will not be easily accessible. So it makes complete sense to be able to deal with the problem in the way envisaged by the European Court.

Already, many media reports talk critically of issues with its implementation, highlighting unscrupulous and undeserving people trying to rewrite history and delete major indiscretions from search results for their name. Given the potential ramifications and the scale of the situation, no doubt there will be many more concerns raised and legitimate questions asked. No doubt some search results will be deleted wrongly. In fact, the parameters are still unclear, but that doesn’t detract from the plain and simple fact that the “right to be forgotten” (absent a stronger and legitimate public interest in those facts not being forgotten) is ultimately a good thing: perhaps even a necessary one in an increasingly connected and unforgiving world, where the efficiency of modern search technology places vast amounts of information at our fingertips.

So despite the risks, despite the problems with implementation, despite the negative coverage, and despite the foreseeably skewed debate, we believe that this decision will be good for the ordinary people of Europe, perhaps even an historic one.

Gideon Benaim and Jon Oakley are from the reputation protection team at Michael Simkins LLP