By Melissa K. Ventrone, Esq., Anjali C. Das, Esq. and Alicia A. Garcia, Esq. of Wilson Elser Moskowitz Edelman & Dicker LLP
Will the “right to be forgotten” be the new mantra in cyber cases in the United States? Or will the “right to know” continue to prevail? In Europe, proponents of the “right to be forgotten” argue that individuals should be able to force search engines such as Google or Bing to remove old or irrelevant information from the Internet for the sake of privacy. This idea clashes with the U.S. view that anything put on the Internet is fair game – the “right to know.”
In a pivotal decision by the Court of Justice of the European Union, the “right to be forgotten” has taken center stage. On May 13, 2014, the Court found that a Spanish National had the right to demand that Google remove linabout him that he claimed were both old and irrelevant. In particular, the Court found that Google Spain was a subsidiary of Google, Inc. on Spanish territory, thus subjecting Google to the EU’s laws. Moreover, the Court noted that in certain circumstances Google Spain, as operator of Google, was required to remove links to web pages published by third parties containing information about an individual that was displayed in the search results. Interestingly, the Court did not describe those “circumstances.”
The Court further noted that the obligation to remove the information may also exist even if the information is lawful. Again, the Court did not describe those situations in which lawful information would be required to be removed. Significantly, the Court opined that without search engine operators such as Google, the details of an individual’s private life would not have been readily available. Yet, the Court of Justice appears to provide an exception for public officials. The Court specifically opined it had to balance the nature of the information in question against the public’s interest in having the information and “the role played by the data subject in public life.”
Opposite Spectrums
While the decision seems to be a victory for proponents of an individual’s privacy, it may be short lived. The Court leaves the decision of whether the links should be removed with the search engine operator, i.e., Google. Specifically, the Court held that it was the responsibility of the search engine operator to decide the merits of each request as to what subject matter should be removed.
In response to the ruling, Google announced that it will consider requests by individuals protected by EU privacy laws requesting the company to remove certain links associated with their names, including information deemed to be "irrelevant, outdated, or otherwise inappropriate." In a May 31, 2014, article, Reuters reported that, after putting up an online form in the early hours of Friday, Google received 12,000 requests across Europe, sometimes averaging 20 per minute, by late in the day, putting a strain on the company as it is forced to review individual requests on a case-by-case basis. Individuals whose requests are denied will no doubt find a way to contest Google's unilateral decision-making process where it acts as both judge and jury.
The Court of Justice’s decision has highlighted the fact that the United States and the European Union are on opposite spectrums when dealing with privacy rights. In the United States, free speech and the “right to know” may, to a certain extent, trump an individual’s right to privacy, and a patchwork quilt of statutes defines personally identifiable information (PII) relatively narrowly. At the other end of the spectrum, the European Union considers privacy a fundamental right, and PII is defined to include all information identifiable to a person – a very broad concept.
If the United States were to adopt the European Union’s view on privacy rights and allow individuals to control the flow of information that is disseminated to the public, it could potentially impact the right to free speech. Rather than being neutral, purveyors of information – search engine operators such as Google, Bing and even Facebook – would be required to act as judge and jury as to what information is disseminated to the public about a certain individual. Essentially, they would be required to decide what speech to publish. In addition to determining what content to leave in the search results, Google and other U.S search engine operators would likewise be inundated with an enormous amount of requests from individuals, adding to the cost and time already spent in content removal.
Based on the Court of Justice’s decision, we are left with the question of which approach is best – the right to be forgotten or the right to know? With proponents and opponents on both sides, the answer is not clear. The Court of Justice’s decision does nothing short of highlight the divide between U.S. and EU views on privacy. However, one answer that is clear is that unless the Court of Justice more narrowly defines the right, the dissemination of information available on the Internet could become much more restricted.
While the implications of the Court’s ruling are unclear, what is clear is that businesses must have appropriate policies and procedures in place now to address data retention and destruction. These policies and procedures will help businesses meet their contractual and legal requirements.
For additional information, contact Melissa at melissa.ventrone@wilsonelser.com- 312.821.6105, Anjali at anjali.das@wilsonelser.com - 312.821.6164 or Alicia at alicia.garcia@wilsonelser.com - 312.821.6455
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