Friday 9 December 2016

EU 'right to be forgotten': one year on

Sophie Curtis

Published 13/05/2015 | 09:00

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Today marks exactly one year since the European Union’s top court made the groundbreaking decision to give people the "right to be forgotten" online – and controversy over the issue shows no signs of abating.

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On 13 May 2013, the European Court of Justice (ECJ) ruled that internet search engines must remove information deemed "inaccurate, inadequate, irrelevant or excessive" for the purposes of data processing, or face a fine.

The ruling came after a Spanish citizen took Google to the ECJ, because he wanted a newspaper article about his insolvency to be "forgotten" by Google and no longer listed on the search engine.

The ECJ held that Google is a "controller" of personal data, and therefore subject to EU data protection rules. Google could not escape its responsibilities under European law by saying that it was a search engine and simply reflecting what people were searching for.

Since then, Google claims to have processed 253,617 removal requests, and approved just over 40 per cent of those. The decision applies not only to Google but to other search engines operating in Europe, including Yahoo and Bing.

Each time a link to a web page is removed from search results, Google sends a notification to the website administrator to inform them of the change. Some websites, including The Telegraph, have maintained a list of removed links.

Web pages that are removed by Google and other search engines are still available in their original forms online but are no longer available in search results, making them more difficult to find.

Users searching for the related topic on Google.co.uk will see a message that says: “Some results may have been removed under data protection law in Europe” at the bottom of the page.

While Google does not disclose the identity of the complainant, applications must supply identity verification to prove the links relate either to themselves, or that they have the legal authority to act on the claimant’s behalf.

Examples of removal requests include:

An individual who was convicted of a serious crime in the last five years but whose conviction was quashed on appeal asking for an article about the incident to be removed (approved)

A high ranking public official asking for recent articles discussing a decades-old criminal conviction to be removed (denied)

A priest convicted for possession of child sexual abuse imagery asking for articles reporting on his sentence and banishment from the church to be removed (denied)

A political activist who was stabbed at a protest asking for a link to an article about the incident to be removed (approved).

A woman requesting that a decades-old article about her husband’s murder, which included her name, be removed (approved)

A doctor requesting the removal of more than 50 links to newspaper articles about a botched procedure (denied)

A man requesting the removal of a link to a news summary of a local magistrate’s decisions that included the man’s guilty verdict. Under the UK Rehabilitation of Offenders Act, his conviction has been spent (approved)

The legislation has received heavy criticism from a number of parties, including the House of Lords EU Committee, which described it as “unworkable and wrong”, and Wikipedia founder Jimmy Wales, who described it as "deeply immoral".

However, the UK's data protection watchdog, the Information Commissioner's Office (ICO), has defended the legislation, claiming that it has "raised awareness of people’s data protection rights" and that removal of links from search results "can have a real benefit".

According to Dina Shiloh, a solicitor at Mishcon de Reya who specialises in media law, the decision last May demonstrated that Europeans have the right to control their own data and how it is processed.

"The decision showed that in Europe, privacy is not dead. Google can no longer argue that it is a neutral 'wall' with no responsibility to the content it links to," she said.

However, she admitted that the situation is far from simple. Even if removal requests are granted, those same articles are still available online, on the sites where they were originally published.

Furthermore, articles that have been 'forgotten' by Google in Europe can still be found by searching Google.com – where the US version of Google is hosted.

"The 'right to be forgotten' is not absolute," said Ms Shiloh. "It has to be balanced against other fundamental rights such as freedom of expression and of the media."

European regulators are calling for the 'right to be forgotten' ruling to apply to search engines worldwide, not just in Europe. However, this proposal has been met with fierce opposition.

Meanwhile, Ms Shiloh pointed out that the ECJ's decision that Google should not link to "inaccurate, inadequate, irrelevant or excessive" material is incredibly broad.

"We are still struggling to define those terms," she said. "In addition,anyone in the public eye may find it difficult to argue information about them is irrelevant – again, 'the public eye' is not an easy thing to define."

Over half of people use a search engine to research a new contact before meeting them for the first time, according to research by online reputation management firm Digitalis, and 92 per cent said discovering something negative online would impact their perception of that contact.

Digitalis has developed a proprietary technology called RedBox, which raises the prominence of "accurate, current information," thereby pushing "negative historic articles" down in search results and presenting "a more balanced profile".

The company claims that the EU right to be forgotten has provided an unexpected business boost, helping FTSE companies and high-net-worth individuals to improve their online image.

“This research highlights how important search engines have become as a tool for researching an individual before meeting them in person," said Dr Laura Toogood, MD of private clients at Digitalis.

"Therefore, it is crucial to be aware of your online identity and information trail. In today’s world, if you don’t manage your reputation, then a search engine like Google will do it automatically for you."

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