22/01/2019 A new challenge for the CJEU: the right to be forgotten

A new challenge for the CJEU: the right to be forgotten

Unhappy that the first results that came up when googling his name were articles relating to a decade-old house repossession due to social security debts, Mr Costeja requested Google to delete the unwanted information from its search results. Ironically, his pursuit of privacy and attempt at hiding this information from the world led to a landmark ruling by the Court of Justice of the European Union (CJEU) in 2014.

The CJEU decided that Google was legally bound to fulfill the request in that particular set of circumstances (Paragraphs 97-98). What made this a landmark ruling? It can be seen as the acknowledgment of a potential ‘right to be forgotten’, though the specific content of such a right remains unclear.

The issue recently resurfaced in another case before the CJEU, which gave the court a good opportunity to either consolidate the right to be forgotten or dismiss it entirely. Last week, Attorney General Szpunar released his opinion on the case. While not legally binding, it is a good indicator of which way the CJEU might be leaning on the issue as the court usually follows the attorney general's opinion.

Precedent aside, the core issue of the right to be forgotten is a conflict between two fundamental rights: the right to privacy and the right to freedom of expression. For individuals like Mr Costeja who have an embarrassing or unwanted incident that they would rather be kept private, the ability to make a legal request to internet operators to delete the content in question would allow them to manage their online identity and possibly start new relationships or jobs with a clean state.

However, if the individual who makes the request is a politician or public official, they may face even greater scrutiny from the general public. This can be extrapolated: would public access to online reviews regarding (for example) doctors trump individuals’ interest to increase the boundaries of their privacy? The answer is far from clear. Further, in the event of a successful request, should the data be deleted globally or only in the jurisdiction in question? On the one hand, being able to access the unwanted content from a different country seems to partially defeat the purpose of a right to be forgotten. However, allowing a court in one jurisdiction to essentially regulate the web content of another jurisdictions leaves room for abuse, since freedom of speech is understood differently across the globe.

In the most recent case before the CJEU, Attorney General Szpunar identified the need to balance the right to privacy and the right to freedom of expression, and indicated that, in general, internet operators should satisfy requests to delete web content. As to the second point, the attorney general rejected a worldwide application of the right to be forgotten.

If the number of cases before the CJEU concerning the right to be forgotten continues to grow, it will be fascinating to see which way the court decides to shift the balance. 

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