The recent Google Spain decision of the Court of Justice of the European Union (CJEU) has received more popular commentary than the average legal case. This is justifiably so given that the case centres on important individual data protection rights in the social media age, and in particular the concept of the Right to be Forgotten (RTBF).
Perhaps less justified is some of the criticism that has been directed at the case. This is also in the context of the unprecedented scale of lobbying of European and national politicians with regard to the new European Data Protection Regulation as it progresses to enactment.
There are indeed complex legal, policy and commercial issues at stake. Various issues have to be balanced and considered.
What is missed in some of the criticism is that the CJEU has already balanced the competing issues. Also frequently missed, is the point that the decision is not altogether surprising at all, and could well have been predicted. One would not necessarily see this in some of the media commentary.
To an extent, while there is a media/free speech point, the media and popular discussion has been largely deflected into a narrow one side perspective of the RTBF. A critical examination may in time reveal that perhaps some of the media have been sucked in to a third party corporate agenda which is altogether different to the actual point they may be concerned with.
The media headlines deflect from the point that there are real life personal interest at stake for individuals and Social Media users. The CJEU decision on one perspective merely recognised that there can be legitimate interests and concerns whereby individuals may wish to have personal information about them taken down or de-listed in search engines. In this instance these interests are recognised by existing data protection legal rights and what is being called the RTBF. Frequently, press comment forget (or are deflected) from considering that individuals have rights and which must be balanced against other rights. The press fails to (fully) discuss and include a discussion of the individual’s rights and interests.
It is also missed that the concerns that individuals are concerned with (and which the CJEU seeks to recognise in a balanced analysis) are increasing. Viktor Mayer-Schönberger recognised the harm that can arise with certain personal information when placed online in his book Delete: The Virtue of Forgetting in the Digital Age. These issues and dangers have only increased in the modern Social Media age since his book was published 2009. It is fair to raise free speech issues in the context of discussing the RTBF. However, a fair and proportionate space should also be provided in press copy to the rights, harms and interests of the billions of Social Media users (and non-Social Media users whom may also have personal data placed online). Those whom are interested to request RTBF takedowns are concerned in just that, takedown of personal data and sometimes harmful personal data.
Some of those most critical of the RTBF are somewhat unbalanced in their comments. For example, Jimmy Wales and Wikipedia are frequently reported as adopting a position of ‘No RTBF Full Stop.’ Such a position ignores not only the reason why the case arose, the legitimate interests and harm avoidance and harm reduction interests at stake, and avoids any discussion of individual’s rights and interests. A ‘No RTBF Full Stop’ position arguably differs from the approach of Google which has been to say that it feels that the balance in the decision is wrong, not that there should not be a RTBF nor that the interest and harms to individuals are to be ignored. Arguably, the ‘No RTBF Full Stop’ position is an outlier and may in time be amended to become a more centred, considered and reasonable position where all interests are fairly considered. As just one example, the No RTBF Full Stop position ignores victims of revenge porn, hacking and those prevented the opportunity of college places or employment due to particular third party content online (and not included in press stories).
Pertinent and interesting research may come to consider the many RTBF takedown requests which do not involve any press stories at all. The categories of RTBF takedown requests may also be considered, such as online abuse (eg trolling, threats, revenge porn, Gamergate), defamation, personal data per se, etc. The responses and volume of RTBF takedown requests of different entities may also come to be considered.
Given the widespread nature of Social Media it is inevitable that the concerns which move individuals to seek to utilise RTBF will cross many national boundaries across the world.
Paul Lambert is the editor of International Handbook of Social Media Laws, forthcoming from Bloomsbury Professional, which includes expert commentary and contributors from over 30 jurisdictions.