The right to be forgotten gdpr and the freedom of expression Contribution submitted by Filip van Eeckhoutte, Van Eeckhoutte lawyers . In its famous ECJ judgment of 13 May 2014, Gonzalez/AEPD vs. Google [ IT 1507], the Court did not wish to elevate the right to be forgotten as a super-right that overrides other fundamental rights such as freedom of expression or the freedom of the media.
On the contrary, the judgment confirms that the right to have your personal data erased is not absolute and clearly limited. The request for removal must be assessed on a case-by-case basis. The right only applies where personal data storage is no longer necessary or irrelevant to the original processing purposes for which the data was collected at the time. Removing irrelevant and outdated links is not equivalent to removing content.
Right to Freedom
The Court made it especially clear in the Gonzalez judgment that a case-by-case assessment is necessary. Neither the right to the protection of personal data nor the right to freedom of expression are absolute rights. A proper balance must be struck between the legitimate interests of internet users and the fundamental rights of the person. Freedom of expression comes with responsibilities and has its limits in both the online and offline world.
That balance may depend on the nature of the information in question, the sensitivity to privacy and the public interest in having that information. It can also depend on the personality in question: the right to be forgotten is by no means intended to bring prominent people to the fore or make criminals look less criminal. The treatment of Gonzalez’s case in itself is a good example of this balancing act.
Although the Court ordered Google to remove access to information that the Spaniard Gonzalez no longer considered relevant, the Court emphasized in paragraph 88 of its judgment that the content of the challenged newspaper article does not have to be changed or deleted on the basis of data protection. Gonzalez’s data, or rather the corresponding newspaper article about Gonzalez, is still accessible, but no longer ubiquitously accessible.
This is sufficient to respect the privacy of the citizen. Google must assess takedown requests on a case-by-case basis and apply the criteria set out in EU law and the judgment of the European Court. These criteria relate to the accuracy, adequacy, relevance – including the elapsed time – and the principle of proportionality of the links in relation to the purpose of the data processing.
Also read: right to be forgotten process
From these requirements of Article 6(1)(c) to it follows from (e) of Directive 95/46 that even initially lawful data processing may no longer be compatible with this directive after some time because such data are no longer necessary for the purposes for which they were collected or processed. For example, the criteria for accuracy and relevance may depend to a significant extent on the amount of time that has elapsed since the original references to a person.
While some search results linking to content on other web pages may still be of interest even after a significant lapse of time, other search results may not be and have sufficient legitimate interest for the latter group to have reference to their “more recent” information removed. . This is exactly the purport of the proposed EU data protection regulation: to empower individuals to manage their personal data.
While protecting freedom of expression and the media explicitly. Article 80 of the proposed Regulation contains a specific provision requiring Member States to reconcile national data protection law with the right to freedom of expression, including the processing of data for journalistic purposes. The provision specifically asks for the type of balancing that the Court has set out in its judgment.
In contrast to the current Directive of 24 October 1995 (Directive 95/46/EC) which it implicitly puts data protection above freedom of the media. This ruling by the European Court of Justice has confirmed the main pillars of the data protection reform. The Commission will continue to push for swift adoption of data protection reforms, including the reinforced and modernized right to be forgotten.
The Commission proposes to strengthen freedom of expression and of the media through a review of European data protection rules. The Commission expects that search engine operators such as Google will further develop well-functioning tools and procedures under the supervision of the competent authorities, in particular data protection authorities, to adequately ensure that individuals can request the erasure of their personal data when they are inaccurate, inadequate, irrelevant or no longer relevant. Google is well on its way with that. Google agrees to more than half of European requests to remove links to personal information from its search results.
Also read: Right to be Forgotten Meaning