Right to be forgotten is the rule to remove any data from the internet sources. This report analyses about the laws and rights of European court for data protection. https://www.assignmentprime.com/law-assignment-writing-help

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INFORMATION
TECHNOLOGY LAW

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Table of Contents
INTRODUCTION..........................................................................................................................1
Background of the Case.................................................................................................... 1
Judgement...............................................................................................................................2
Analysis and Implications of the decision...................................................................3
Brief Implications of the decision...................................................................................7
CONCLUSION.............................................................................................................................. 8
REFERENCES............................................................................................................................ 10
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INTRODUCTION
The newly emerged 'Right to be Forgotten' has attracted immense
controversy and uproar on an international platform, especially in connection
to European Union. This jurisprudential development was undertaken in May,
2014 through the judgement of Court of Justice in the case of Google Spain
SL and Google Inc v. Angencia Espanola de Proteccion de Datos (AEPD) and
Mario Costeja Gonzalez (2014). The court upheld the validity of a new right
which entitles every person to have their personal data forgotten from
internet. The application of this right is sought in EU and in pursuance to the
same every person in the region has the right to put forward a request to the
search engines, to have their data deleted from the digital memory. The
impact of this judgement can be felt across the world and has made a
significant impact on the manner in which internet is operated.1 A specific
impact of this decision is made on the extent to which any person can access
data on internet in respect to specific individuals. It is important to note that
the business impact of this decision is not only detrimental for Google alone,
the broad construction of the decision has the capability to make other
internet operators liable for breach of privacy. In order to gain a better
understanding on the issue the instant study seeks to analyze the judicial
pronouncement of the 2014 case and illustrate the impacts which it has on
all the search engine, in addition to Google.
Background of the Case
This case involved a Spanish national who approached Spanish Data
Protection Agency (SDPA) to remove an internet article published by a
newspaper. The compliant was made against Google, as it was alleged by
him that on searching the name of the applicant a particular article from
1998 is shown in the results. It was further alleged that the article revealed
certain information in respect to an auction which was conducted to recover

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certain forms of debt against him. In pursuance to the complaint of applicant,
SDPA directed Google Inc. and Google Spain to conceal the concerned
personal data or remove it from internet. In response to the same a legal
proceeding was instituted by Google before the National High Court in Spain.
The matter was referred to European Court of Justice (ECJ).2 The specific
legal issues which were made fro referral were:
 Whether the applicant was entitled to directly approach Google for
removal of the concerned personal data, which has been published by
a third party;
 Whether Right to object or erasure, given under the European Union
Directive 95/46/EC entitles the data subject to request removal of
such personal data on the ground of right to privacy, even after
passage of a considerable time or even if the data was uploaded
lawfully at that point in time.
The Directive provides for processing of personal data as well as on
free movement of such data.
Judgement
Considering the European Union Directive 95/46/EC it was stated by
ECJ that this regulation is responsible for processing of data as well as grant
rights to such people to raise objection on processing of any form of personal
data on grounds which are reasonable and justifiable in nature. In
accordance to this provision the data subject is entitled to complaint the
same to the concerned person who is responsible for processing the data. It
was found by the court that the activities being carried out by Google are
well within the definition of processing the personal data as suggested in the
Directive. In light of these deductions Google Inc. and Google Spain shall be
considered well within the scope of the Directive.3 In the event the request is

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not fulfilled at this level the data subject may approach the judiciary or other
supervisory authorities. The court while considering the facts of the case in
hand stated that the nature of personal data involved in the present case has
the potential to fundamentally impact their respective right of privacy.
Considering the nature of interference which the applicant is being subject to
it can be stated that publication of such a personal data cannot be solely
justified for the economic interests which the concerned processors of
information may have in the matter. The respective search engine was
considered to be under obligation to process the data completely in
accordance to the Directive 95/46/EC. In furtherance to the same the court
while interpreting the right to object under the Directive as inclusive of the
'right of erasure or to be forgotten' in connection to the personal data which
is published on internet.4 In light of this interpretation every person is
entitled to request the search engine operators to either erase the data
which is prejudicial in nature or allow it to be forgotten after lapse of certain
time period.
Further, the court also considered Article 12(b) of the same Directive
which in essence empowers the data subjects to require the operators to
erase or block certain personal data, processing of which is not in
accordance to the Directive 95/46/EC. The incompatibility of personal data
could be in terms of inaccuracy, inadequacy, irrelevancy and exaggeration in
respect to the purpose of publication of the concerned data.5 Thus, in
conclusion it was stated by the court that the right of data subject in relation
to prejudicial personal data shall have an overriding effect on the economic
interests which the operators may have in such data. Moreover, the court
also indicated towards an exceptional situation wherein this right shall not be
made available to the data subject, i.e. in the event the data subject is a
public figure and publishing of such a data is in preponderant interest of

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public. Since the facts of the instant case in hand does not fall within the
periphery of the situation of exception, the concerned search engine
operator was directed to remove the concerned personal data from the
internet.
Analysis and Implications of the decision
The judgement pronounced by court in this case has led to eruption of
numerous legal issues, which are from the perspective of both the public in
general as well as search engine operators responsible for processing of the
data on internet. In concern to the human rights of an individual, the court
has considered Article 7 and 8 of the Charter, in pursuance to which it has
been stated the operators are under an obligation to strike a balance
between the interests of public to access the data and the interests of data
subjects under Article 7 and 8 of the Charter. The two articles provides for
right to private life as well as protection of personal data. However, it can
stated that the judgement has failed to establish the degree to which the
right to be forgotten can be exercised by the data subject. Moreover, this
decision ought to have an implication on the other fundamental rights,
specifically in relation to freedom of expression. Moreover, it shall also have
a detrimental impact on the obligations which the other internet operators
are required to exercise, beyond Google. After ascertaining the resolution to
the preliminary issues the court considered the balancing test which shall be
assessed for application of the balancing test. It was observed by the court
that the processors are permitted to process information or data which is
personal in nature which in effect serves to the economic interests of the
said controllers or other concerned parties. However, the said permission is
not granted in the instances wherein the overriding interests of data subject
in terms of their fundamental rights of privacy rights are being impacted. In
accordance to the opinion of the court it is essential to consider the
seriousness of the interference which is being made by the alleged
prejudicial data in the rights of the data subject. Moreover, it is also

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important to consider the right of public to access requisite data or
information on the internet in respect to specific persons. In pursuance to the
same the preponderant interest of accessing the information shall be allowed
and the right to be forgotten of the data subject shall not be given priority.6
It has also been stated by the court that considering the supremacy
and importance of right to privacy of any data subject, the objection shall
readily be approved even if it is found that such a data is not prejudicial in
any form. Apart from breach of the right to privacy, a data subject has been
entitled to raise an objection even if the data or information is not adequate
in relation to which it has been used, or is completely irrelevant to the
context or even if it has become irrelevant over the course of time. In
addition, even in the cases where excessive or exaggerated information or
data has been published in relation to the purpose, then also the search
engines shall be required to remove the concerned data or links from the
digital platform. However, the decision of the court has been facing immense
criticism from all the aspects of the legal fraternity. Much of the criticism is
explicitly based on legal arguments, in accordance to which the decision of
the court in relation to granting of right to erasure under the Directive and
other wise is completely outside the periphery of legality attached with the
issue. Firstly, it is being argued that the decision of the court to consider
Google as a data controller under the Directive is completely extraneous,
and moreover application of the balancing test was wrong on grounds of
ignoring basic legal principles as well as rights of the concerned parties.
It can be observed that decision of the court has accorded unqualified
powers to private entities, whop are now empowered to regulate or censor
the content to be published on internet. The court has refrained from
providing any form of guidance which could regulate the powers of these
private data subjects. Therefore, in pursuance to the decision of court
unprecedented powers have been given to the data subject. However, there

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has been another opinion in response to this criticism, that the decision of
court in presence of the concerned circumstances was a reasonable
interpretation of various rights which are available to all the parties involved
in the matter. It has also been highlighted by some that the critics shall
direct their focus on shaping the debate for introduction of a new regulatory
system which is capable to govern the nuances of modern technology and
requirement of privacy protection.
The court while deciding the matter in hand, also made a very broad
interpretation of the definition of data controllers under the Directive to
apply the right to privacy and right to object against personal data. The
British House of Lords while reviewing the decision of court specifically
lamented that the approach and interpretation of data controller was too
wide and has now the capacity to include all any of the entities which
operate to aggregate the any form of data which is available publicly. Thus,
in effect to this misinterpretation the decision of the court is applicable on all
the such entities and institute a suit against them in the event of allegation
of right to privacy or publishing of prejudicial data. Moreover, it was opined
by the court that the overall interpretation of the Directive by the court in
the present matter shall have been more stringent in nature. It has the
capacity to produce results which are completely absurd in nature and shall
have an effect of even including the users of these search engines, if
assessed in a logical manner.
The court while pursuing the balance test in connection to
interpretation of the Directive has given priority to the right to privacy over
almost all the other rights which may be involved in respect to all the parties
which are under consideration. In result of this prioritization of the privacy
rights it is argued that the court has developed an exclusive super human
right of data erasure, irrespective of the fact that all the human rights
available under law are not bound by any form of hierarchical relationship.7

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The focus of the court was entirely on granting of right to privacy and in the
process they completely ignored the application and importance of other
rights which may be available to parties. For instance the freedom of
information and expression which is one of the fundamental rights available
to the public or other entities.
The interpretation of the court on the other hand is entirely based on
the principle and values underlying the wording of the Directive and hence,
could not be considered inappropriate. On analysing the description of the
manner in which internet search operates, it can be stated that both legal as
well as intuitive description of 'data controller and processor' is mirrored in
the precise manner.8 Opinion of the court is strictly based on the processes
which are undertaken by Google or any such search engine in processing or
controlling all the data which is displayed on search. Moreover, in response
to the criticism of the balancing test it has been stated that the Directive
itself provides for prioritization of rights and the court has acted completely
in accordance to the text of the Directive. After analysing the wordings of the
Directive, it has been ascertained that it acknowledges the importance of
free flow of data to be accessed by the public, but at the same it is also clear
that this right is subordinate to the right of protection of fundamental rights,
especially in terms of the right to privacy. On the basis of this conclusion it
can be stated that the Directive itself provides for a hierarchical relationship
between the Human rights and the approach of court was completely in
accordance to the Directive and hence, cannot be considered as erroneous in
nature. Moreover, the interpretation style of the court was completely text-
based and reasonable in nature, and also a reflection of the underlying
principle and values of the Directive.
The decision of court in respect to granting of an unqualified right to be
forgotten to private entities may also have consequences which prove to be
detrimental in effect and has some real world impacts. In pursuance to the

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opinion extra powers have been made available for the entities as well as
Google in connection to censoring the publicly available data and information,
without providing any form of guidance or instructions.9 The process has
been made extremely easy and simple for the entities to directly approach
the operators of search engines and impeding access to certain set of facts
and information they longer wish to be available for others. Though the court
has provided for certain situations on the basis of which only the search
engines shall allow the request of data subjects, but these grounds are wide
enough to include almost reason which these entities could think of.
Moreover, the fact that these requests have been allowed to be made within
the personal or private capacities of the concerned parties, it completely
eliminates the requirement of public accountability as well as scrutiny. In can
be inferred from this that the entire process of exercise of right to be
forgotten shall be away aloof of any form of scrutiny and authentication. This
in turn gives unreasonable powers to both Google (other search engines) as
well as the data subjects to take decisions on a discretionary basis and take
undue advantages.10 Therefore, the decision has left a large scope for
Google to exercise their discretion and undertake decisions which are not
subject to any form of guidance or qualification. Moreover, this in effect
provides insufficient protection to the interests of public in relation to the
freedom of expression as well as access to information.
It is important to note that the approach of the court in evolving
judgement of the case is deeply tied to the text and values of the Directive.
The Directive provides a clear indication of prioritization of Right to Privacy
over any other human rights, which forms basis of the decision to empower
private entities to exercise effective control over the processing and
publication of any form of personal data which is available online. Moreover,
the decision to grant absolute power to Google in determining the

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information which is allowed to be displayed in the search results is derived
from command of the Directive for the Controller. The command specifically
requires the controller to be assured of the quality of data being published.
Moreover, the Directive provides a very broad and vague language in
relation to implementation of various requirements, and hence, the court
also did not take any initiative or played an active role in developing
guidance notes for Google or any other search engine.11 However, the court
here has left scope for these search engines and Google to develop their own
parameters for entertaining these form of requests.
Brief Implications of the decision
The implications of upholding the Right to be Forgotten can be briefly
summed up in the following manner:
 The application of this right is primarily within the jurisdiction of
European Union, which implies that all the entities or companies which
are working within this region but also having majority of their
operations outside Europe shall also be made liable to adhere to the
same. Moreover, all the entities which are now covered within the
broad definition of 'data controller' shall be required re structure their
operations in accordance to the same.
 This decision shall also have an impact on the companies from other
jurisdictions which intend to target the EU market. The rationale
behind the same is that though the company is not within the
jurisdiction, the internet search findings shall be subject to the decision
and hence, shall be able to give restricted results.12 In turn this shall
increase the difficulty of these companies to target consumers from
this region.

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 A large number of companies primarily operating online shall be
required to review all the policies and assure the manner in which
personal data of different entities is being used. Moreover, the decision
has been made applicable on all the entities, notwithstanding any form
of licenses, thereby covering all the alleged 'data controllers' to comply
with the ruling of the court in relation to Right to be forgotten.13
 Google has taken initiatives for establishing a forum in which people
can make request to remove data and information that they found to
be private and does not want it to be on Internet. Other than Google
some other search engines such as Yahoo and Bing also have taken
steps for this and they have made plans for removal of the content
from the Internet.
CONCLUSION
European court have ruled in the case that EU citizens have been
provided with the “Right to be forgotten”. According to this they have been
provided authority for requesting to remove any data from the internet
sources. Any pages that are deemed to be private can be requested to be
removed. It has been ruled out by the European court of justice that
European citizen has been provided with the right to request for removing
links from personal search engines. If these search engines are asked to
remove content which individuals found private than requests can be made
under “ Right to forgotten”. It has declined the economic interest of the
publishers and has given overriding power to the public interest to ensure
access to information. Data protection has been made easier with this and
privacy of data can be maintained by making use of this. In consequence to
this decision it can be stated that any personal data which has been
uploaded many years back, shall also be entitled to be removed in
pursuance to the Right to be Forgotten. In pursuance to the same it has been

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stated that the status of the personal data shall be assessed in accordance
to the currently prevailing facts and circumstances. Therefore, any data
which was lawful or relevant when uploaded on internet shall be liable to be
removed if the data subject is of the opinion that it is not longer relevant or
accurate for the purpose of actually uploading it. Apart from breach of the
right to privacy, a data subject has been entitled to raise an objection even if
the data or information is not adequate in relation to which it has been used,
or is completely irrelevant to the context or even if it has become irrelevant
over the course of time. The application of this right is sought in EU and in
pursuance to the same every person in the region has the right to put
forward a request to the search engines, to have their data deleted from the
digital memory. Thus, Right to be Forgotten or Erasure has been granted to
all the private entities to be exercised against the data controllers or the
operators of the search engine.
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REFERENCES
● McNealy, Jasmine E. "The emerging conflict between newsworthiness and
the right to be forgotten." (2012).
● Erik Werfel, J. D., CIPPUS IGP, and CEDS CISSP. "What Organizations Must
Know About the'Right to be Forgotten'." Information Management 50.2
(2016): 30.
● Dumas, Agnès, et al. "The right to be forgotten: a change in access to
insurance and loans after childhood cancer?." Journal of Cancer
Survivorship (2017): 1-7.
● Kerr, Julia. "What Is a Search Engine: The Simple Question the Court of
Justice of the European Union Forgot to Ask and What It Means for the
Future of the Right to Be Forgotten." Chi. J. Int'l L. 17 (2016): 217.
● Hovav, Anat. "Responsible Innovation: The Role of MIS in the" Right to be
Forgotten" Discourse." (2016).
● Xue, Minhui, et al. "The Right to be Forgotten in the Media: A Data-Driven
Study." Proceedings on Privacy Enhancing Technologies 2016.4 (2016):
389-402.
● Goldenberg, David. "The Right to Abortion: Expansion of the Right to
Privacy Through the Fourteenth Amendment." The Catholic Lawyer 19.1
(2017): 11.
● Macenaite, Milda. "From universal towards child-specific protection of the
right to privacy online: Dilemmas in the EU General Data Protection
Regulation." New Media & Society (2017): 1461444816686327.
● Schulhofer, Stephen J. "An international right to privacy? Be careful what
you wish for." International Journal of Constitutional Law 14.1 (2016):
238-261.