Right to be forgotten and the Google Advisory Council in Rome: main takeaways

by DLA Piper

As you all remember, last May the European Court of Justice ruled that Google must allow the de-indexing of web pages containing personal data, further to a lawful enforcement by the relevant data subjects of their right to be forgotten.

Google have taken this decision very seriously. Following the ruling it has made available a page www.google.com/advisorycouncil/  containing the online form required to exercise the right to be forgotten and request the de-indexing.

In parallel, Google  set up a committee composed of ten high-profile personalities (among others, representatives of Google, the founder of Wikipedia, university professors and the director of Le Monde) to help assess this issue.  Currently, the committee (the Advisory Council to Google on the Right to be Forgotten) is participating in public meetings with experts from various European countries, and yesterday they were in Rome.

Italian journalists and jurists highlighted the main issues deriving from the ruling of the Court of Justice.

Here are some of the points raised:

Who should carry out the balancing between the right to be forgotten and the freedom of expression / freedom of the press? Is it advisable that a first decision, although not definitive, is taken by a private company that – legitimately – pursues purposes of profit and risk minimization rather than the public interests? Would it be more appropriate that the balancing is operated only by public institutions (courts or independent administrative authorities)? During the meeting, one of the participants proposed a compromise solution, with a temporary de-indexing (for a specified period, like, for instance, 30 days), within which the data subject should bring the case before the competent authorities (otherwise the link is be indexed back).

That said, compliance with the current regulations remains a massive exercise: Google informed that it received to date 100,000 requests for de-indexing from all over Europe) and that this may produce an irreparable damage on the right to historical records. Will there be a real possibility for future historians to adequately carry out their researches?

The possibility of obtaining the content de-indexing also affects the legitimate expectation of the author of that content that his/her work is disseminated by all means currently available, including search engines. It does not appear that there is an adequate remedy for the prejudice suffered with reference to the de-indexed content, if the request is forwarded to the search engine cutting out the author of the source to be forgotten.

The balancing of the interests at stake is even more complicated in relation to not ordinary situations. For instance, let’s consider the large huge amount of information in social networks or blogs that is generated in relation to a hotelier, a restaurateur? It is possible to argue that there is a public interest in knowing the reviews concerning those data subjects. When will anyone request to forget an old bad online review?

Some commentators pointed out that Google does not have the skills and experience to carry out an assessment for balancing interests in the absence of an in-depth knowledge of the facts, emphasizing the fact that Google does not produce news or content but they simply re-organizes them.

From the point of view of the relevant industry, one could also argue that the burden imposed by the decision of the European Court of Justice is in fact affordable only by large entities, and this may lead to a closing of the market which is certainly not desirable.

These are some of the issues  that came up during the public meeting held yesterday afternoon at the Auditorium della Musica in Rome.

The debate is open, very interesting from a political, sociological, journalistic and, of course, legal standpoint. We will keep you updated with our blog on the outcome of the consultations that the Advisory Council will publish.

In the meantime, anyone who wants to contribute can do so at this link.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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