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Right to be forgotten related issues have become a very popular after the decision of the European Court of Justice against Google on the matter. And interesting topics arose from the public meeting held yesterday in Rome by Google’s Advisory Council with some local experts to discuss how the ruling on the right to be forgotten should be adopted.
I have already discussed in the post available here about the contents of the decision on the European Court of Justice on the right to be forgotten. But interesting proposals and topics of discussion came up during the meeting of yesterday and here are my top 5 takeaways!
1. Balance between freedom of expression and privacy
A number of experts stressed that the assessment of the circumstances in which the right to be forgotten can be exercised depends on the identification of the right balance between the freedom of expression and individuals’ privacy rights. Someone emphasized that the balance is based on the assessment of the public interest to the indexed information while others followed a stricter approach under which the freedom of expression always prevails on privacy rights and therefore information shall always remain indexed. Also, an open issue was whether such balance shall be different in case of public officials or just well-known persons.
2. Right to have the information updated
There was a very interesting speech stressing that individuals should have the right to have their information available on the Internet always updated. And the typical scenario mentioned by the expert referred to cases when a person has been convicted by the Court of First Instance and eventually acquitted during the Appeal. In my view this type of right can be considered equal to the so called “right of access” already prescribed by the EU Privacy Directive under which data subject can request the update of the information stored by data controllers, but the issue is whether the decision of the European Court of Justice is going beyond such right.
3. Can the right to be forgotten used if the information is correct?
The issue is more delicate when the stored/indexed information is correct, true and up-to-date. In such case, can some request that such information no longer indexed after a period of time? Discussions arose on the need to have a cultural change avoiding that individuals are judged for their past, but it is at least arguable to hold that such change is expected to come soon.
Also, it is possible to argue that it should be an obligation on websites rather than Google to remove the news that want to be forgotten. But it has been also stressed the prominent role of Google on the Internet and the higher level of effectiveness of measures adopted by them leads more responsibilities.
4. Who shall be the judge?
A number of experts criticised the ruling of the European Court of Justice in the parts where it grants Google the obligation to assess the circumstances in which the right to be forgotten should be exercised. And several proposals were about the identification of an independent body in charge of deciding about such matters. But the tricky issue is that according to the information provided by Google they received so far over 120,000 requests of exercise. Therefore it has been questioned whether any kind of body would be able to handle such workload.
Also, this reminds me the discussions in Italy about the setting up on the new procedure for the taking down of copyright breaching material from the Internet outlined in this post where the authority in charge of the disputes was accused to perform a censorship conduct. If an independent body in charge of solving disputes on the right to be forgotten is identified, don’t we risk that a new type of censorship is challenged to such body?
5. Is the current Internet liability regime correct?
Following up to the discussions on the previous point an expert stressed that the liability regime set out in the decision of the European Court of Justice which attributed to Google the obligation to give execution to the right to be forgotten is not totally new. Indeed, the European E-Commerce Directive already provides it as experienced by Google itself in a recent case involving YouTube. The issue is whether the approach set forth in the E-Commerce Directive is still the one to follow.
This is a very interesting topic and we will follow the developments of the matter, but in the meantime feel free to contact me, Giulio Coraggio to discuss. Also, if you want to receive my newsletter, please join my LinkedIn Group or my Facebook page. And follow me on Twitter, Google+ and become one of my friends on LinkedIn.
