Consequences of the Costeja ruling

On November 19, the Privacy Platform discussed the Right to be Forgotten and the Costeja judgment

By Dods EU monitoring

20 Nov 2014

Please note that this does not constitute a formal record of the proceedings of the meeting. It is dependent on interpretation and acts as an unofficial summary of the debate.

On November 19, the Privacy Platform organised a session on online searching and privacy in the EU: 'The Right to be Forgotten' and the Costeja-judgement. Please find a summary of the discussion below.

Sophie in’t Veld (ALDE, NL) stated that the right to be forgotten is very high on the political agenda. A lot of time is needed to define the scope of the right to be forgotten. It is a term coined by former Commissioner Viviane Reding in the proposed data protection package but it already existed for much longer but under a less sexy term: the right to erasure.

Joaquin Muñoz Rodriguez, Lawyer of Mr. Costeja & partner focused on data protection compliance, e-commerce law, Abanlex, argued that not everyone has taken the issue as seriously as it deserves. Digital representation is a concern to millions of citizens in the EU and the rest of the world. The problem is that what is said is not always correct or current. Both the Charter of Fundamental rights and the EU directive allows everyone to access data and decide who has the data and on which purpose. The most effective agent to approach for access is the editor of the website concerned. He said that he is satisfied with the Spanish data protection authority for requesting the search engine not to index the links. The ECJ ruling is clear, he stated; it recalls that the right to data protection is fundamental but not absolute and has to be considered with other rights at stake, such as the freedom of press and freedom of information. A balance needs to be found.

He said that the right to be forgotten cannot be used as a tool for politicians and criminals to customise their profile by deleting information. It has to be carefully applied. It deals with the fact that many people are affected by outdated information related to their name. He explained that Mr. Costeja decided to change a letter in his last name on his business card so people would not find him when they googled his name.

He stated that the ruling is final. Nevertheless, he admitted that it might be difficult for search engines to make decisions that meet the criteria of the ruling. The search engine operator will have to make decision at its own discretion without being able to relay on precedent. Over time, the decision of the national courts and authorities will create an increasingly predicable framework within which search operators handle requests.

He added that the right to be forgotten does not imply any censorship; it will simply not be referred to in the links resulting from the search for a specific name. The information itself is not deleted from the source. Globalisation and access to technology should not be limited or conditioned by the country of origin of the service provider. The average user does not check or is aware of the provider`s nationality when agreeing to terms and conditions of a certain service. Minimum international privacy standards must be the basis for guaranteeing users’ rights and this could be part of a trade agreement between the EU and USA, he said.

Sophie in’t Veld (ALDE, NL) said she was intrigued by the reactions from the court ruling as it seemed like a new right was created – the right to know, which is not a right. One does not have the right to know information on another individual unless there is an overriding public interest. He said that Google proceeded to a new instrument for people to make such a request and other companies are working on similar formats. Companies have an interest in serving their clients. She wondered what the situation is regarding public authorities.

Peter Fleischer, Global Privacy Counsel, Google, argued that Google grumbled for five minutes when the judgment was made but then they said they had to comply with it as it was an order from the European top court without the possibility to appeal. They had to build a program to deal with an unknown number of requests. The court order ordered Google and others to make a balance and apply this test to every individual URL submitted. They have received 170 000 requests which relate to more than 500 000 URLs. Google reviewed every single URL individually. He said that Google tried to be as transparent on this as possible and referred to google.com/transparencyreport. He said that cumulatively 42 percent of requests have been removed. He explained that there are easy yeses, easy noes and though decisions. An example of an easy yes is photos of an undressed woman that were posted by her ex-boyfriend. An easy no was a request from an Italian politician who was convicted for bribery to remove this before running for mayor. He explained that these tasks cannot be outsourced to an algorithm. They have teams of lawyers, engineers, paralegals and so on. He also added that the most difficult cases are those that appear in newspapers.

He explained that the removal of links applies to all EU and EFTA domains and not only to one country as is the case for many other areas such as hate speech as countries have different rules. However, they are not applying them worldwide as other courts in other countries might not have come to the same concluding judgment. In the USA for instance, the Supreme Court would have said something else and brought in the 1st amendment.

He carried on explaining that Google has been giving notice to the webmasters concerned about the removal in the search results as this reduces the flow of traffic to their website. However, they do not say the name of the person who requested it. He stated that the decision was silent on what the rights for the webmaster were. Webmasters sometimes take the content down themselves or give additional information to Google. Google only has the information supplied by the people who want to have the link removed. However, this is a one-side story.

He said that 70 percent of requests were denied in Italy and most of them were related to newspaper articles. In the Charter of Fundament Rights, privacy is one of the rights and so is freedom of expression and access to information. One is dealing with competing fundamental rights. He added that France submitted the largest amount of requests, followed by Germany.

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