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The Right to be Forgotten: Don't Forget the Rule of Law!

Paris, 10 July 2014 — On 10 July, the Working Group on Information Exchange and Data Protection (DAPIX), in charge of the General Data Protection Regulation, worked on the regulation's Article 17, the “Right to be forgotten and erasure”. In this framework, the legislator must consider the harm to freedom of expression and information, harm which the law currently makes possible, and provide citizens with procedures that safeguard that freedom.

The work of DAPIX – which is not made accessible to the public – comes after the 13 May 2014 judgment by the European Court of Justice (ECJ) on a dispute between the Spanish Data Protection Agency and Google. This decision clearly states that a search engine is required to comply with a person's right to object to and erase data when the conditions as laid out by Directive 95/46 EC are met.

While the court ruling defends the need for data protection, it fails to address the issue of finding a balance between the protection of personal data and the freedom of expression and information. In effect, the court handed the responsibility to find that balance to private search engines although they have neither the expertise nor the legitimacy to act as judge, thus clearly undermining the rule of law. Indeed, the ruling appeared to ignore the Advocate General's warning to preserve the freedom of expression and information. Indexation through hypertext links for instance is a way to access and share information which is, or should be, protected by freedom of expression.

Google responded promptly to the ECJ ruling, publishing a web form that allows Internet users to claim their right to be forgotten, confirming fears of seeing the principles of the Rule of Law violated. The US firm received more than 70 000 requests (1 000 a day on average) and some high-profile media outlets, such as The Guardian and the BBC, have already been directly affected, with articles de-indexed. The case of the BBC is particularly interesting as it appeared to concern Mr. Stan O'Neal, the former boss of investment bank Merrill Lynch, who is suspected to have made reckless investments that might have led to the collapse of the financial giant. The request however, was found to have not come from him, but from an Internet user who requested the de-indexation of his comment below the article. This case affects an important aspect of freedom of expression, that is the responsible speech, and demonstrates the potential dangers or even abuses posed by a badly conceived system that entrusts censorship powers to a private body, when that power should be under the sole control of a judicial authority.

The ECJ case law clearly demonstrates that freedom of expression is insufficiently protected by the derogation set out in Article 9 of Directive 95/46 EC and referred to in Article 80 of the proposal of the European Commission, under discussion since January 2012. In fact, while current European legislation provides for derogation for personal data rights-holders for “journalistic purposes”, the European Court of Human Rights handed down several judgments that exemplified to what extent “journalistic purposes" are not always clearly defined. In the judgment Von Hannover vs. Germany, for instance, Princess Caroline of Monaco lost when she opposed the publication of a photo taken during family holidays. The court failed to find a violation of the right to privacy, not because Caroline of Monaco is a public figure, but because the images were accompanied by an article that reported on the Prince Rainier's uncertain health status, information considered of general interest.

The ECJ judgment and the abuses already observed in the implementation of the right to be forgotten show that the balance between the protection of personal data and the freedom of expression and information deserves the greatest attention from the legislator. First of all, those shortcomings show that exceptions to the protection of personal data provided for freedom of expression have proven to be insufficient. Moreover, they show to what extent the weighing of those rights require the consideration of multiple elements that need to be processed in the framework of a fair trial and which can never be subject to an extra-judicial and consequently arbitrary decision. Finally and more generally, they pose the challenge of determining if the legislation on the protection of personal data constitutes the most suitable vehicle for the implementation of the right to be forgotten, when the information targeted has been disclosed to the public and falls within the scope of freedom of expression.

“It is unacceptable that EU law allows extra-judicial censorship. Only a fair trial can ensure that an appropriate balance of rights and interests of each and every individual is reached. The judicial system, as the public guardian of our freedoms, is the only entity capable of finding the right balance between privacy and freedom of expression and information. It is essential that citizens can, at soon as possible, assert their claims before the court” said Jean Cattan, member of La Quadrature du Net's Strategic Policy Committee.

“In order to reaffirm the balance between the right to data protection and freedom of expression and information, we call upon the Council to take into account the need to create a legal framework not only on data protection, but also on freedom of expression and information. This matter can not be addressed individually by every single Member States: it requires a coordinated and holistic approach to stop the anti-democratic abuses that unfortunately already exist in some EU countries” concluded Miriam Artino in charge of the legal and policy analysis at La Quadrature du Net.