The Right to be Forgotten

“When we are talking about past, eather we harp on about or we forget” (Paul Ricoeur french philosopher)

That definitely resume an ex porn actress ordeal became a legal assistant. A porn website still allowed video under her real name or patronym. A French court in 2012, February 15th have condemned this website to delete the illegal content and Google to unindex te name of the claimant connected with porn website. The Court ruling makes echo to European Commision wish to set up a European legislation review dealing with personal data. That is the purpose of the European court of justice settled May, 13th 2014 which has consecrated the right to be forgotten.

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A national newspaper had published a real estate auction where a Spanish claimant was the subject. As a consequence, an indexation was done on Google. The claimant, Mario Costeja Gonzales made a claim to the newspaper and to the industry giant to remove or to change the search pages. Indeed, he argues that the fact the case were closed since long time ago, the mention of this settled case was not relevant anymore.

The Spanish personal data institution rejected this claim regarding the newspaper which according to it, had legally published data involved.

Nonetheless, the institution has retained the claim about Google indexation and has ruled the obligation for Google to take measures in order of indexation. Then the company requested the cancellation of the decision and beg the Spanish court to ask a prejudicial question to the European judge.

European justice Court bases its May, 14th 2014 decision on the 95/46/CE directive dealing with the personal data and the fundamental rights when this personal data are collected. The European court has judged that it had to consider Google gone into the directive’s frame in that the company deals with personal data. The directive defines this treatment as ”every operation or the whole of operation made or not with the help of automatics process and applied to personal data such as collect, consultation…”

Indeed, for each research, Google automatically collect informations to index it, to retain it and at least to propose the research’s result to the user. Each data is interconnected with the other, in this way you can establish a complete profile about a person. Without this structuration of the collected informations, it will be more difficult

Since this research can embody a risk regarding to the respect of private life, the European court decided that Google was in charge of the data’s processing.

This decision has many consequences for Google. First of all, Google must delete the result about the person’s name, even if the link is lawful and will remain on the website after the unindexation, as soon as the information is not pertinent, unsuitable or excessive. A balance between the right to be informed and the respect of private life must be set up, even if the court seem to encorage the respect of private life.

Then the internet user who want to use the « right to be forgotten » must ask Google. The search engine accept or not the request regarding to the information on the person, if the information really hurts private life and the information’s interest for the public.

Finaly, if Google refuses to remove the information, the internet user can go in front of the court which decision can force Google to Unindex the link.

Like we said just before, a right balance must be found between the logical interest of internet users to have access to the information and the fundamental law of the person concerned, in particularly the respect of private life and the protection of personal data. Even if the person’s right seem to prevail over the internet user’s interest, this equilibrium may depend in certain cases, on the nature of the information in question and on its sensitivity to the privacy of the person and the public’s interest in receiving this information which may vary according to the role played by the latter in public life.The European court face up to a lot a demands, indeed many internet user wants to use the « rigth to be forgotten » and ask the full withdrawal of « data block » in spite of any reflexion of their sensitivity. The search engine are completely overwhelmed so they bent to don’t agree to remove the internet user’s personal data.  The european court can help the internet user to use the « rigth to be forgotten », but a french demand will be effective only in the french domain. (google.fr) More over, the definition of privacy is no the same across the states, so a right to universal forgetting is not for today. In May of 2015, the data protection authority issued and order that required Google to apply European data protection laws outside of European domains.

Indeed, if critics said earlier that Google could be also required to delist links from all European versions of Google, as well as from all global versions. That is means the firm is required to remove links in all versions of Google Search in any country in the world. In order to defend his position, Google reveals that extend this right to be forgotten could impact the worldwide web. The right to be forgotten can not be enforce globally regarding the fact some content that is illegal in one country may be legal in another. Every laws are not applicable all across the world.

Google argues the approacg of the French data protection authority, CNIL, cannot serve as a standard for regulation the Internet because this means of expression would only be as free as the world’s least free place. In this way, one country should not have the authority to decide and control what content users in another country can find and access. The company further notes that such a measure wouldn’t even be necessary, because as much as 97 percent of Internet users in France access a European version of Google’s search engine, not Google.com or some other version.With all of these in mind, Google is declining the CNIL’s request and has asked the regulator to withdraw its Formal Notice.

We need to watch how relationships between world governments and Google develop. If States  will need to secure Google’s cooperation about data management, it will be not that easy because Google has demonstrated that it has the power to say no to any state’s bidding.

Since ages governments and States are seen as the most dangerous enemy of expressive liberties and access to information. But Google has shown what free speech theorists have known all along — that nonstate actors can wield just as much power as states, if not more.

  

Audrey SERTILLANGE  Étudiante en Master 2 Gestion et Droit de l’Économie Numérique de l’université de Strasbourg curieuse de nature je suis passionnée par l’innovation et les questions juridiques qu’elle engendre. J’éprouve un intérêt particulier pour le droit de la propriété intellectuelle appliqué aux nouvelles technologies.

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Etudiant en Master 2 Droit de l’économie numérique et titulaire d’un Master droit de l’entreprise et des affaires obtenu à l’Université de Montpellier. J’ai développé au cours de ma formation juridique un intérêt particulier pour le fonctionnement, l’utilisation et l’évolution des NTIC ainsi que les questions juridiques que cela soulève.
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