What’s in the ECJ’s “right to be forgotten”

One month ago, the European Union’s highest court published its “right to be forgotten” judgment ?C-131/12 against Google. While it seems that European data protection authorities welcomed the decision, there’s also a lot of criticism about the last part on the right to be forgotten.

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I’ve never been a big fan of the so-called “right to be forgotten”. The first time I heard about it was in 2009 when the French digital economy minister launched this debate. Already then, I remember that a student asked her during a conference, how to erase their name from Google. (While at the same time the discussion was about students publishing stuff on Facebook they might regret later…)

But is that really what it is? What’s in this decision, what does it say compared to the 95/46/EC directive?

Let’s start by leaving out the obvious: No, this decision does not lay out the bases to a censorship machine for politicians and paedophiles. Paragraph 81 clearly insists on the analysis on balance that prevents it.

81. […] Whilst it is true that the data subject’s rights protected by those articles also override, as a general rule, that interest of internet users, that balance may however depend, in specific cases, on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life.

Second, the “right to be forgotten” is an unfortunate characterisation. Let’s recall that article 9 of the directive provides exemptions for freedom of expression.

‘Member States shall provide for exemptions or derogations from the provisions of this Chapter, Chapter IV and Chapter VI for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression.’

However, it’s unfortunate that it remains unclear to which extent this exemption could apply to new kinds of organising information that do not strictly fall into the scope of “journalistic [or] artistic or literary expression”.

Now that we see that this decision is not as extremely bad as some would like to depict it, let’s dive a little bit into the details of this “right to remove personal data that are no-longer-relevant for the purposes for which they were processed” by search engines (that’s how Google interprets the decision).

But before that, let me note this: the decision is hard to read.

One reason why it’s hard to read is because, frankly, the directive is strangely articulated and it’s just not well written. But the decision itself is also bogus, there’s often no clear path of logic to follow, it’s going in all directions with no structure.

So I’ve tried to make an alternate version that’s easier to read: you can refer to specific paragraphs and you can toggle parts of the directive cited in the body of the decision. Okay, let’s get into it.

  • What was the question the Court had to answer? (see paragraph 89).

    The question was whether the “data subject” (i.e. the person to whom the personal data at stake relates to) can ask the search engine to alter search results of their name in order to remove true and lawfully published information.

    By the directive,

    (a) ‘personal data’ shall mean any information relating to an identified or identifiable natural person (‘data subject’); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity;

    TL;DR: the answer is Yes, in most cases.

  • The Court starts by repeating that the data subject has the right to obtain rectification, erasure or blocking of data when the processing does not comply with the directive (see the directive, article 12(b) on “Right to access”).

    The processing’s non-compliance with the directive can result from different situations (see article 6(c) to 6(e) on “data quality”):

    • when the data being further processed is inadequate, irrelevant or excessive in relation to the ‘specified, explicit and legitimate’ purposes for which personal data was collected/processed
    • when the data is not accurate and, where necessary not kept up to date
    • when the data permits identification of the data subject for longer than necessary

    The Court also repeats that in the course of time, lawful processing of data may become incompatible with the directive:

    where those data are no longer necessary in the light of the purposes for which they were collected or processed. That is so in particular where they appear to be inadequate, irrelevant or no longer relevant, or excessive in relation to those purposes and in the light of the time that has elapsed.93)

    (It should be noted nevertheless that the directive provides an exception “for historical, statistical or scientific” use and purposes.)

  • It seems that most analyses of the decision have focused on the parts I have just highlighted. However, I think the analysis made under article 14 is more worrisome. Indeed, it’s important to note that the Court gives a very, very strong preference to data subjects’ rights even when there’s no prejudice:

    • data subjects can object at any time to their personal data being processed because of their particular situation (see article 14 on “Right to object”). The Court of Justice finds here that it is not necessary for the data subject to demonstrate that the data processing causes prejudice.

    • the data processing’s can also be found not-compliant when the data controller legitimate interests or the rights of the public are overridden by the data subject’s interests [or] fundamental rights and freedoms (see article 7 in “Criteria for making data processing legitimate”).

      The rights to privacy of the data subject override “as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in finding that information upon a search relating to the data subject’s name.” (¶ 97) What seemed an exception under the directive under article 7 now is a general rule under the circumstances of the case. So the right of the public in accessing public information now is an exception:

      However, that would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of inclusion in the list of results, access to the information in question.

      The justification for this can be found in paragraphs 80 and 81.

      80. It must be pointed out at the outset that, as has been found in paragraphs 36 to 38 of the present judgment, processing of personal data, such as that at issue in the main proceedings, carried out by the operator of a search engine is liable to affect significantly the fundamental rights to privacy and to the protection of personal data when the search by means of that engine is carried out on the basis of an individual’s name, since that processing enables any internet user to obtain through the list of results a structured overview of the information relating to that individual that can be found on the internet — information which potentially concerns a vast number of aspects of his private life and which, without the search engine, could not have been interconnected or could have been only with great difficulty — and thereby to establish a more or less detailed profile of him. Furthermore, the effect of the interference with those rights of the data subject is heightened on account of the important role played by the internet and search engines in modern society, which render the information contained in such a list of results ubiquitous (see, to this effect, Joined Cases C-509/09 and C-161/10 eDate Advertising and Others EU:C:2011:685, paragraph 45).

      81. In the light of the potential seriousness of that interference, it is clear that it cannot be justified by merely the economic interest which the operator of such an engine has in that processing. However, inasmuch as the removal of links from the list of results could, depending on the information at issue, have effects upon the legitimate interest of internet users potentially interested in having access to that information, in situations such as that at issue in the main proceedings a fair balance should be sought in particular between that interest and the data subject’s fundamental rights under Articles 7 and 8 of the Charter. Whilst it is true that the data subject’s rights protected by those articles also override, as a general rule, that interest of internet users, that balance may however depend, in specific cases, on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life.


This is why the Court concludes that:

since in the case in point there do not appear to be particular reasons substantiating a preponderant interest of the public in having, in the context of such a search, access to that information, a matter which is, however, for the referring court to establish, the data subject may, by virtue of Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46, require those links to be removed from the list of results.

99. It follows from the foregoing considerations that the answer to Question 3 is that Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 are to be interpreted as meaning that,

when appraising the conditions for the application of those provisions, it should inter alia be examined

  • whether the data subject has a right that the information in question relating to him personally should, at this point in time, no longer be linked to his name by a list of results displayed following a search made on the basis of his name,

    • without it being necessary in order to find such a right that the inclusion of the information in question in that list causes prejudice to the data subject.
  • As the data subject may, in the light of his fundamental rights under Articles 7 and 8 of the Charter, request that the information in question no longer be made available to the general public on account of its inclusion in such a list of results, those rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in having access to that information upon a search relating to the data subject’s name.

    • However, that would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of its inclusion in the list of results, access to the information in question.

In the end, the Court of Justices gives a lot more strength to the data subjects’ rights to oppose the processing of personal data when it appers “no longer relevant” in light of the purposes (of the search engine) and in light of the time – except for narrow exceptions (scientific, historical or statistical data processing; journalistic or artistic purposes and freedom of expression). In addition, the Court makes it a general rule that data subjects’ rights to oppose data processing should override the right of the public to access public information on the grounds of the right to private life (but without the need to demonstrate prejudice), unless it can be demonstrated that there are particular reasons otherwise (justified by the preponderant interest of the general public).

This will undeniably have practical implications for search engines and other data controllers, not just Gooogle. It might be opportunistic to see if there should be a new role to play here for data protection authorities in order to avoid that private actors decide for the public what constitutes something of preponderant general public interest or not.

However, it still seems to me that this “general rule” is a bold interpretation made by the Court of Justice.

I find it much less balanced than other remedies based on the right to private life (such as France’s article 9 of the civil code) where prejudice must be demonstrated. Was all that really necessary?

“Right to be forgotten”: Twitter

Dear Hugo

[censored/ personal stuff]

I just wanted to follow up on our conversation on Twitter about “the right to be forgotten” - 160 characters is just not enough some times!

The point I was attempting to make is that so much of the reporting about this issue is describing it as a “right to be forgotten”, rather than a right to object to processing of personal data.

Whilst the CJEU set out some preconditions for the exercise of this right, my point in terms of liability is that this “right to object” is a right granted to data subjects and that, conversely, there is no “right to process” granted to data controllers. Instead, controllers are permitted to process provided that they satisfy certain criteria, including rules around lawfulness and legitimacy.

If a controller does not comply with these requirements, they can be sued; the directive provides that member states must provide for a right of action for a person who has suffered damage as a result of an unlawful processing operation to be entitled to receive compensation.

To my mind, this sets the incentives up incorrectly:

  • a controller must satisfy certain grounds to be permitted to process personal data
  • if the controller does not meet these requirements, it can be sued by a data subject
  • a data subject has a right to object, which entails providing a “justified objection” on “compelling legitimate grounds”
  • it is left to the data controller to determine whether the complaint meets these criteria
  • even if the controller decides that the criteria are not met, it may have to defend its decision in court
  • if the court upholds the claim, it is unlikely to benefit — spending money to defend its position when, arguably, there is unlikely to be much of a business benefit in doing so. Only the biggest, richest companies are likely to be able to afford to litigate on a point of principle like this
  • if the court says that the subject’s objection was valid, a damages action is available

To me, this is a case of the incentives being set incorrectly; if the aim of the legislation is to ensure a balancing act between the right of privacy and the right to communication, setting up a structure whereby the controller could be liable for damages if it fails to remove something following an objection, only encourages removal.

This is much like the liability protections within the eCommerce directive: an intermediary is shieled from liability, as long as it removes infringing material expeditiously. In theory, it is open to the intermediary to argue that the material is not infringing, and thus it has no liability, but the incentive is set incorrectly: if a hosting provider is liable unless it removes the information, it is more than likely to err on the side of removal.

So, a few more than 160 characters, but that’s what I was trying to say!

All the best,

Neil

Comment by Neil Brown
Re: “Right to be forgotten”: Twitter

Hi Neil,

Always interesting to read your thoughts!

↪ 2014-07-29 mar. 09:23, Neil Brown <…>:

[censored/ personal stuff]

[censored/ personal stuff]

I just wanted to follow up on our conversation on Twitter about “the right to be forgotten” - 160 characters is just not enough some times!

Yes! You need to use some more space and then link that back to Twitter ☺

I use this to get this done and I’m quite happy with it: http://github.com/idno/idno

The point I was attempting to make is that so much of the reporting about this issue is describing it as a “right to be forgotten”, rather than a right to object to processing of personal data.

Yes. I am not happy at all with the characterisation of the judgment the media’s making either. At the same time, the issue is quite complex…

Whilst the CJEU set out some preconditions for the exercise of this right, my point in terms of liability is that this “right to object” is a right granted to data subjects and that, conversely, there is no “right to process” granted to data controllers. Instead, controllers are permitted to process provided that they satisfy certain criteria, including rules around lawfulness and legitimacy.

If a controller does not comply with these requirements, they can be sued; the directive provides that member states must provide for a right of action for a person who has suffered damage as a result of an unlawful processing operation to be entitled to receive compensation.

To my mind, this sets the incentives up incorrectly: - a controller must satisfy certain grounds to be permitted to process personal data - if the controller does not meet these requirements, it can be sued by a data subject - a data subject has a right to object, which entails providing a “justified objection” on “compelling legitimate grounds” - it is left to the data controller to determine whether the complaint meets these criteria - even if the controller decides that the criteria are not met, it may have to defend its decision in court - if the court upholds the claim, it is unlikely to benefit — spending money to defend its position when, arguably, there is unlikely to be much of a business benefit in doing so. Only the biggest, richest companies are likely to be able to afford to litigate on a point of principle like this - if the court says that the subject’s objection was valid, a damages action is available

To me, this is a case of the incentives being set incorrectly; if the aim of the legislation is to ensure a balancing act between the right of privacy and the right to communication, setting up a structure whereby the controller could be liable for damages if it fails to remove something following an objection, only encourages removal.

This is much like the liability protections within the eCommerce directive: an intermediary is shieled from liability, as long as it removes infringing material expeditiously. In theory, it is open to the intermediary to argue that the material is not infringing, and thus it has no liability, but the incentive is set incorrectly: if a hosting provider is liable unless it removes the information, it is more than likely to err on the side of removal.

So, a few more than 160 characters, but that’s what I was trying to say!

We entirely agree on that.

What makes me sad is that is the collateral damage made by this decision, the right of the public to access lawfully published information, which IMHO should be considered a part of freedom of expression because it’s pointless to have the write to express yourself if other do not have the right to access your thoughts.

I have been quite annoyed by the decision, specifically when it says:

The rights to privacy of the data subject override “as a rule,
not only the economic interest of the operator of the search
engine but also the interest of the general public in finding
that information upon a search relating to the data subject’s
name.” (¶ 97)

especially because article 7 provides a basis for giving legitimacy to processing based on the rights of the public:

‘Member States shall provide that personal data may be
processed only if:

…

(f)      processing is necessary for the purposes of the
legitimate interests pursued by the controller or by the
third party or parties to whom the data are disclosed,
except where such interests are overridden by the
interests [or] fundamental rights and freedoms of the data
subject which require protection under Article 1(1).’

It seems quite bold to me for the ECJ to basically say that in the case of personal data being processed, the interests pursued by the public to access lawfully published information is generally not legitimate!

Also it’s quite new to me that fundamental rights and freedoms of individual protected under Article 1(1) do not necessarily need to demonstrate prejudice. From the theory of subjective rights from which the right for the respect of private life (which is not the same as a right for privacy), this is quite interesting.

I’m in favour of better understanding and protection for privacy, in addition to individuals’ rights to the respect of private life. But for me, these are two different things. While privacy is something more social, the right for the respect of private life is an individual’s subjective right and needs to demonstrate prejudice.

This decision gives to the data subject an all too important power in the name of better privacy. I don’t think this decision was the best way to start this, and I think it did it in a way that cause more problems than it actually solves.

Now the French CNIL is not happy with Google noticing the media when they alter search results pointing to their article. But the fact that it’s a problem is evidence for me that this is all badly conceived by the ECJ.

Which is worrisome considered the increasing role this court plays regarding fundamental rights and freedoms…

(By the way, I think this discussion could also be very interesting in public so that other people can correct me when I’m wrong and discuss)

Comment by hugo
“Right to be forgotten”: Twitter

On 29 Jul 2014, at 09:00, Hugo Roy <…> wrote:

Dear Hugo

Always interesting to read your thoughts!

Likewise - and it was you that started this! ;)

http://github.com/idno/idno

Thank you; I will take a look.

I tried to get it going on my external-facing Raspberry Pi a couple of nights back, but it had some problems with MongoDB, so I will have to take another look when I get some more time. Thank you for the recommendation though; it is not one which I had seen before, and it looks rather good.

What makes me sad is that is the collateral damage made by this decision, the right of the public to access lawfully published information, which IMHO should be considered a part of freedom of expression because it’s pointless to have the write to express yourself if other do not have the right to access your thoughts.

Absolutely. By setting this out as a “right to object” under data protection law, and failing to provide sufficient shielding for the data controller to permit them to undertake a proper balancing act, freedom of expression is jeopardised, in my view.

It seems quite bold to me for the ECJ to basically say that in the case of personal data being processed, the interests pursued by the public to access lawfully published information is generally not legitimate!

Agreed. I am less concerned that the economic interests of the search engine are deprecated, but, as you say, the much wider, societal, issue of public interest v private interest, and handling the situation in which the two are not the same is critically important. Hence, for example, the limitations on the rights of data subjects within the framework in respect of journalism, recognising the wider, important, role which journalism plays. Perhaps, these days, online search needs a similar recognition, although I suspect that there is a pitfall to avoid here too, that someone indexing a newspaper and someone writing the content of that newspaper are not the same thing.

the right for the respect of private life (which is not the same as a right for privacy)

Spot on — when I teach “privacy” law, this is one of the key points that I make: it is an interpretation to read “private life” as “privacy”.

This decision gives to the data subject an all too important power in the name of better privacy. I don’t think this decision was the best way to start this, and I think it did it in a way that cause more problems than it actually solves.

It sounds like we are very much in the same place on this, especially in terms of (1) the way in which this sets incentives to perhaps over-account for privacy at the expense of wider, social, rights, and (2) the ineffectiveness of the solution, given that others are already indexing changes, to ensure that the full context is available. However, I am not sure that there has ever been a decision which overturns, or relegates to the sidelines, Lindqvist, so I am not sure that data protection and the Internet is particularly well understood anyway!

Agreed, and this suits me; perhaps, when I get idno working, we could post the respective parts of our exchanges there? Else, if you have another plan, do let me know.

All the best,

Neil

Comment by Neil Brown