Few cases before the Court of Justice of the European Union (CJEU) have provoked more, or more heated, debate than the 13 May ruling on the “right to be forgotten.” The ruling interprets existing EU data protection law to include a right for individuals to demand that search engines refrain from linking to specified search results under certain conditions. CDT and many other commentators have been critical of the ruling, primarily because we do not think the CJEU appropriately considered the impact of its ruling on the free expression rights of Internet users in Europe and around the world.
While the ruling is focused on search engines, it comes in the midst of EU Member States’ long-running discussions on a data protection reform package, the General Data Protection Regulation (GDPR), and were the ruling’s logic to be ported into new legislation, its implications would be much broader. With this background, Justice Ministers from across the Union will, on 10 October, engage in a political debate on the ruling. They will take on some fundamental and difficult questions: How the right should be balanced with freedom of expression, what the proper scope of the right is, on what grounds it can be exercised, and what obligations and responsibilities should be placed on data controllers.
CDT offers its views ahead of this debate. We argue that removal or deletion requests should be made to publishers rather than intermediaries. We highlight the need for far more clarity and guidance as to when such requests should be honoured. We argue that publishers should be transparent about when and why information is suppressed or deleted, and that they should not be responsible for ensuring that third parties also comply. Finally, we make the fundamental point that freedom of expression and the right to privacy are equal rights and must enjoy equal protection. This was a major issue the Court got wrong, and it should not be replicated in the future.