Google has taken the first step to implement the “Right to be Forgotten” decision by the European Court of Justice (ECJ). It has provided individuals a form to complete to request that their personal information be removed from Search or Image Search results. Google says it is working to finalize its implementation of removal requests under European data protection law as soon as possible, but in the meantime, those that wish to be forgotten can fill out the form and Google will notify the want-to-be forgotten person when it starts processing his or her request. Google’s efforts to meet the requirements of law are to be commended, but the form and process only serves to underscore the unresolved and difficult implementation questions that lie ahead, not just for Google, but for all search engines.*
First, before you can be forgotten, Google will need to know a lot more about you. The form requires a photo ID to prove you are who you say you are when you say you wish to be forgotten. Without some form of verification, the system would be ripe for abuse and misuse. Then, the requesting person must provide the name of the data subject, the requestor’s full name, the requestor’s relationship to the person if the request is about another person, the specific URL(s) to be removed, and finally, an explanation of how the search result is “irrelevant, outdated, or otherwise inappropriate,” which is the legal standard for removal announced by the ECJ. The irony is obvious—to be forgotten, you must first become better known, and ultimately may become so notorious as to never be able to be forgotten.
So how will this work? Let’s assume Mario Costeja González completes the form—remember, he has not yet won the right to be forgotten, and under the ECJ decision he must now formally request that Google forget about him. As the ECJ explained: “Requests...may be addressed by the data subject directly to the controller who must then duly examine their merits and, as the case may be, end processing of the data in question.” Google’s form is a reasonable step in its process of “duly examining” the merits of any request.
For González, the issue behind his request began with this article, or rather a link to the Spanish newspaper in which the notice of his debt appeared. In his request, González likely will identify the URL as one to be blocked whenever his name is entered into a search engine. Using Google’s form, he will have to explain how the public notice of his debt is “irrelevant, outdated, or otherwise inappropriate.”
The delinking obligation arises only when a person’s name, in this case González, is the search term. (See Par. 82 of the decision “the supervisory authority or judicial authority may order the operator of the search engine to remove from the list of results displayed following a search made on the basis of a person’s name links to the web pages published by third parties.”) González could use several permutations of his name, including misspellings, to identify the URLs, but he cannot provide search terms like “ECJ decision” or “right to be forgotten” that may return results that contain links to the notice about his debt or otherwise discuss his role in the case. Google’s form appropriately requires the data subject provide all of the search terms used to identify the URLs.
González may persuade Google that the specific link to the Spanish newspaper notice is no longer relevant, timely or appropriate, but given the public reporting and broad linking to the debt notice, Google will have to decide whether the link should remain anyway because it is of general interest due to the role of González in public life. The ECJ suggests that the role played by the data subject in public life is a valid offsetting factor to removal. Does González’s vindication of his private right in public institutions constitute playing a significant role in public life by bringing the right to be forgotten to fruition?
Google’s form only sets the process of removal in motion. What remains is the question of transparency of the process that Google or any other search engine will use to decide whether to remove or not. What information will Google or any other search engine examine outside the four corners of the form submitted by the data subject? Does Google have to inform the data subject of the precise reason for denying the request? Does it have to notify the data subject in writing of the reason?
Let’s assume Google denies Gonzalez’s request. According to the ECJ, “[w]here the controller does not grant the request, the data subject may bring the matter before the supervisory authority or the judicial authority so that it carries out the necessary checks and orders the controller to take specific measures accordingly.” So, back to court. We can envision discovery, investigative demands and countless entanglements arising regarding the decision-making process used to deny González’s request. Google’s form say that after the form is submitted, Google may forward the request, and any accompanying details, to the relevant data protection authority. When would it do that? At the time of submission? After denying a request? Only if a data subject appeals?
In the meantime, Google’s form also says that they “may inform webmaster(s) whose content is removed from our search results as a result of your complaint.” That suggests that Google may display a notice that it has removed results that otherwise would have been displayed for legal reasons. And that means the world will know there is something out there about the data subject and no doubt it will become an Internet past time to discover it. The forms submitted by data subjects also no doubt will become targets of discovery in future civil or criminal litigation—embellished reasons and explanations for the removal request will become interesting reading if discoverable. Remember, a data subject will have to submit a request to each search engine for removal. Each search engine will need a process and form like Google’s to respond.
Google’s form offers one last interesting hint about how the ECJ decision may be implemented. Google asks the data subject to identify the country whose law applies to the request. There is no right to be forgotten in the U.S., for example, so requests submitted from countries where no such right exists may be readily disposed of. But the request also may suggest that the ECJ decision will be implemented on a local level only. That is, the search results would only be blocked in the country of residence—for González, that would mean Spain. The jurisdictional basis for the ECJ opinion, and its extraterritorial reach, will at least keep law professors teaching a long time.
So, Google’s form is a responsible first response to the ECJ decision even though full implementation of the decision raises many questions. Search engines have to start somewhere.
*Disclaimer: While Perkins Coie represents Google in various legal issues, the views expressed throughout this client update are the sole opinion of the author.