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Right to be forgotten: Organisation calls on Google and data protection watchdogs to protect free speech

Today [16 October 2014], ARTICLE 19 is giving evidence before Google's Advisory Council on the so-called right to be forgotten. The Advisory Council was set up in the aftermath of the Google Spain v Costeja judgment, in which EU's top court ruled that individuals had the right to request Google and other search engines operating in the European Union ('EU') to remove links to results generated by a search for their name. The Advisory Council has been holding a series of hearings across Europe in Madrid, Rome, Paris, Warsaw, Berlin and now London. The Council will then report on its findings.

Gabrielle Guillemin, Senior Legal Officer at ARTICLE 19, said: “In the debate over the Right to Be Forgotten, we must not forget freedom of expression. Data protection must never be used as a trump card simply in order to protect individuals from embarrassing information that was already lawfully in the public domain.”

In our written evidence to Google's Advisory Council, ARTICLE 19 highlighted the following:

ON THE JUDGMENT ITSELF:

  • The CJEU failed to properly take into account the right to freedom of expression;
  • The data protection framework is inadequate to deal with the issues that arise in the context of the right to be forgotten;
  • Search engines should not be put in the position of deciding what information is ‘adequate, relevant or no longer relevant’ based solely on individual complaints.

ON THE BALANCE BETWEEN THE RIGHTS TO FREEDOM OF EXPRESSION AND PRIVACY:

  • The right to know must be given equal weight in the balance with the right to privacy. There should also be an overarching presumption that information already legitimately in the public domain should remain in the public domain.
  • Personal data contained in historical records should remain in the public domain unless the data subject can establish substantial harm that outweighs the public interest in direct access to that information.

ON THE PROCESS:

  • It is essential that websites are notified whenever links to their content are removed from search results so that they are able to challenge unfair removals.
  • Data protection authorities should develop a code of practice following an open and inclusive consultative process.

For more information, read ARTICLE 19's written response to Google's Advisory Council here.

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