Guidelines, Fact Sheets and Myth-Busting: EU Working Hard to Clarify the Right to Be Forgotten

Since the EU Court of Justice made its ruling on the right to be forgotten in May 2014, the topic has been in the media almost incessantly. Most of the debate concerns matters of principle: does the right amount to censorship, who is permitted to exercise the right and under what conditions, and does it actually benefit privacy? As new cases continue to come up, the EU is working hard to provide guidelines, fact sheets and myth-busting documents to explain why the ruling makes sense.

Earlier this year, time.lex reported on the Court of Justice's ruling on the right to be forgotten. In a nutshell, the Court ruled that, under certain conditions, citizens in the EU could demand that search engines suppress certain search results relating to them, if these results were considered "inaccurate, inadequate, irrelevant or excessive". However, there is quite a bit of a grey area when a citizen tries to exercise this right. When is a result "inaccurate, inadequate, irrelevant or excessive"? How does a search provider appreciate the public interest in a search result, e.g. when the person making the request is a public figure, or the event is of historic importance?

The answers to those questions are not always straightforward, and a wrong response can lead to attempts at censorship or harm the credibility of search engines. At the same time, many people fundamentally misunderstand the right, and wrongly argue that it can be used by politicians to hide incidents that place them in an unfavourable light, or even permit the re-writing of public history.

To clear up some of these questions, the Article 29 Working Party, the EU's leading data protection body, has recently issued a fact sheet on the right to be forgotten. The fact sheet briefly describes the background and scope of the Court of Justice's ruling, as well as the currently envisaged proposals for enshrining the right into law through the General Data Protection Regulation.

The fact sheet also emphasizes that the right does not amount to a one-size-fits-all blank cheque: persons exercising the right need to justify why specific search results are "inaccurate, inadequate, irrelevant or excessive". A case-by-case decision needs to be made for each request by the search engines; fully automated deletion of results at the request of citizens is thus not an appropriate way to move forward. The Working Party is reportedly also working on guidelines that will help search engines and other service providers to assess the requests that they receive, to ensure a sufficiently equal application of the rules. These guidelines are expected by the end of November.

In addition, the Working Party also recently published a "Myth Busting" document, in which it addresses some of the main criticisms and doubts targeted towards the right to be forgotten. The document debunks some of the less informed criticisms (such as the ones mentioned above), although it is also somewhat selective in its choice of questions and answers.

By way of example, when addressing the criticism that the ruling allows for censorship, the response rightly notes that "the right to be forgotten does not allow governments to decide what can and cannot be online or what should or should not be read." This is correct: the right does not enable government censorship. However, it does allow citizens themselves to attempt to censor their own online history, and the first decision on whether this attempt succeeds will be made by search engine operators. While the document notes that independent authorities will oversee the assessment carried out by the search engine operators, it seems likely that their assistance will mainly be asked for when the search engine denies a request, rather than when a request is granted. In other words, as long as first-line decisions are made by private entities, the incentive is to delete information, not to keep it, which is a structure conducive to censorship.

Thus, it is likely that new and important questions of principle will continue to arise in the near future. It remains to be seen to what extent the anticipated guidelines and the prospective General Data Protection Regulation will be able to alleviate some of the remaining concerns.

Hans Graux comments:

"The new guidance documents address some of the main questions being raised by the public, and also debunk some of the more simplistic myths around the right to be forgotten. But the debate is not over, as the fundamental question remains to what extent people may demand the cooperation of others in managing their online histories. Companies need to tread carefully when assessing deletion requests."