Right to Be Forgotten Ruling Means that He Will Never Be Forgotten

In May 2014, the European High Court ruled that EU citizens had a right to data privacy that included a right to insist that Google de-list old or irrelevant links about them. (Case) It was mis-named a “right to be forgotten,” as there is no such right at all. While it is easy to sell the public on a newfound digital human right, what the Court really handed down was a duty on Internet search engines to de-list results.

Almost immediately, Google’s public relations team and a slew of other hysterics flew into a tizzy — the sky was, yet again, falling. The rallying cry was “this will break the Internet.” Whenever you hear someone say that something will “break the internet,” go get your bullshit detector. Put in fresh batteries, because it will go off the charts.

Repeat after me, “if someone says ‘this will break the Internet,’ there is a 99% chance that the person is either a) being paid by Google to say that, or b) simply has not thought it through.”

One of the most idiotic criticisms of the Google Spain case was the abject lie that ex-nazis could use this ruling to hide their participation in the holocaust. I wrote, at the time, that this would be impossible. (source) The Google Spain ruling ends with an admonishment. The “right to be forgotten” does not apply if it appears for “particular reasons”: if there is good cause to interfere with the citizen’s right to privacy, including “the role played by the data subject in public life,” and if a majority of the evidence shows that the general public has a right to that information.

In other words, the right to data privacy in the EU exists on a sliding scale. It has to be balanced with the right to free expression. Since the original decision came down, there have been a number of cases in which the RTBF has been very predictably narrowed. For example:

In May of 2012, a Dutch TV show titled “Crime Reporter” broadcast secretly recorded footage of the plaintiff in this case speaking with an alleged assassin. The plaintiff was subsequently convicted to six years in prison for “attempted incitement of a contract killing,” a conviction which is still under appeal. In the broadcast, the man was not identified by his full name, but it did display his first initial and his last name.

The plaintiff originally requested that Google remove links to online publications which reported the crime he had committed. Google was initially willing to comply with part of the results the plaintiff complained about, but refused to fully honor his request. The plaintiff then decided to bring a lawsuit to have other search results wiped as well.

To my knowledge, this was the first test of the “Right to Be Forgotten” since the Court of Justice of the European Union originally declared the right in the Google Spain case. However here, the Court of Amsterdam gave some clarity as to how this new right will be treated and rejected the plaintiff’s claims in favor of free speech and newsworthiness.

The Dutch Court stated that the Right to be Forgotten “judgement does not intend to protect individuals against all negative communications on the Internet, but only against being pursued for a long time by irrelevant, excessive, or unnecessarily defamatory expressions.”

The Judge further added that, “The conviction for a serious crime such as the one at issue and the negative publicity as a consequence thereof, in general provide information about an individual that will remain relevant. The negative qualifications that may be involved will only be ‘excessive’ or ‘unnecessarily defamatory’ in very exceptional cases, for instance when the offense committed is brought up again without a clear reason, apparently for no other purpose than to damage the individual involved, if reporting is not factual but rather a ‘slanging-match’.”

In addition, this case gave a bit of insight as to how Google is implementing requests for removals. Because Google partially accommodated the plaintiff’s request for removal of information, he complained that now when his name was entered into Google, the search engine displayed a disclaimer which said “Some results may have been removed on the basis of European data protection legislation.” The Court rejected the plaintiff’s complaints in this respect finding that the disclaimer Google displayed was indeed accurate and lawful information about the data subject. (source)

In another ‘RTBF’ case decided in favor of Google, The Court of Amsterdam yet again ruled in favor of free speech and newsworthiness. This time instead of a grave criminal offense, a KPMG partner tried to employ the ‘Right to be Forgotten’ as a tool to erase a personal news story. According to outlets that reported on this, the KPMG partner and his contractor got into a dispute which forced the KPMG partner to live in a container on his country estate for an extended period. After refusing to pay his contractor’s bill, the contractor changed the locks at which point local media outlets picked up on this story. The KPMG partner was not pleased by the fact this this private dispute was subject to press coverage and sought to end this by employing the Google Spain ruling.

However, the Court of Amsterdam made clear that this is not the proper use of the ‘RTBF’. It stated, “When applying the so-called ‘right of removal’ this particularly relates to – briefly put – the relevance of the search results found, rather than whether the contents of (in this case) the articles found are themselves inadequate, irrelevant or excessive”.

The KPMG contractor took the position that his dispute was no longer relevant as it was a private matter that occurred roughly two and a half years prior to the case being heard. However, the judge made note that the RTBF may not be used to suppress news articles when she stated: “The [right of removal] is not meant to remove articles which may be unpleasant, but not unlawful, from the eyes of the public via the detour of a request for removal to the operator of a search machine.”

The judge further ruled that the search results are not irrelevant as the articles were published between 2012 and 2014. However, the judge left the door open for a future, renewed request for removal and distinguished this case from Google Spain as Costeja (plaintiff) in that case was seeking removal of search results that dated back 16 years.

In addition the KPMG partner asserted that he had other serious grounds that warranted removal of the search results in that his friends and business associates were made aware of his spat in the headlines. Supporting freedom of speech over the personal embarrassment the story may cause the KPMG partner the judge ruled, “The fact that the claimant does not like it that he is still confronted by his acquaintances or business contacts with the ‘container story’ is very understandable. However, this does not outweigh the right of freedom of information of Google Inc.” (source)

However the most recent case is one that shows exactly how little the sky really is falling — and how life can be a real puta.

Mr. Costeja, the Google Spain plaintiff, came back to the Spanish authorities, seeking a de-listing of articles about him and his case against Google. The Spanish Data Protection Authority, Agencia Española de Protección de Datos (AEPD), denied his request to suppress links to comments about the Google Spain case itself. The Agency found that given the importance and widespread attention of the CJEU’s ruling, articles and commentary discussing the case and facts behind it are considered of public interest. (decision)

All of these rulings show that the “right to be forgotten” is not the end of free speech on the internet. No kittens died. No Nazis got their past removed from the Internet. And no, the Internet is not broken.

We should all thank Mr. Costeja for doing his part to bring about the right to be forgotten, and now we should thank him again for showing that the decision is probably one that strikes the right balance.

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