The Right To Be Forgotten

The European community has been making great strides to establish and protect individual privacy in the globalized cyber community. On May 13, 2014, the European Court of Justice (“ECJ”) issued a decision that European Union (“EU”) citizens had a right to ask search engines to remove search results about themselves.  The ECJ defined this as a “right to be forgotten.”  Google, which is upset about this holding, has set up a form for users to request information removal. American counterparts, and officials within Google, have expressed concern about the implications of this ruling—both for the search engine and the threat to the flow of information.  Ultimately, the ECJ has established that the right to privacy supersedes the right to information.

What Are the Terms of the 2014 Ruling?

In issuing the decision, the ECJ was enforcing a 1995 EU directive on privacy that defines and regulates search engines as data collectors. European regulators have historically been more concerned with personal privacy than the United States. Accordingly, European government agencies have taken greater steps to enforce protections. Both the EU and members states have adopted provisions to protect privacy and family life. For instance, in 2010, the European Commission declared the right to be forgotten as a foundational aspect of its Data Protection Regulation.

In this case, the ECJ ruling only applies to personal information over the Internet. So, for example, businesses could not request a removal of poor reviews. A valid request must include photo identification (e.g., driver’s license) and explain why the subject information is “irrelevant, outdated, or otherwise inappropriate.” If Google does take down any information, it will post a notice indicating the request. Eric Schmidt, chairman of Google, explained that this ruling poses a “collision between a ‘right to be forgotten’ and a right to know.” Mr. Schmidt went on to say that Europe’s highest court reached a decision that did not strike a proper balance between these two. Larry Page, Google’s chief executive officer, added that the decision would empower governments looking to restrict online access and information. The right to be forgotten standard would serve as a new tool for governments to implement censorship.

Is There A “Right To Be Forgotten” Under U.S. Laws?

The ECJ ruling is only binding on countries that are members of the European Union.   The member states are responsible for instituting measures to implement ECJ decisions within their own borders. Abiding by ECJ decisions is a condition of continued membership in the EU. In the United States, people can also submit requests to Google to remove information about themselves. However, in America, Google is under no obligation to remove any information it considers to be in the public interest.  Indeed, the ECJ decision highlights the fundamentally different approaches to cyber privacy in America and in Europe.  In America, government regulation and search engine freedom focus on the right to know as more valuable than the right to privacy.  For example, the First Amendment protects the right to know. Then, individuals and entities can take legal action under tort laws for defamation and invasion of privacy as remedies if they are harmed by incorrect or harmful information.

At our law firm, we help inform our clients about international cyber security and privacy rights.  You may contact us to discuss with an attorney how this recent ruling will affect your privacy rights.