CHAPTER 4: SHOULD THERE CONTINUE TO BE
A 'RIGHT TO BE FORGOTTEN'?
The Commission's view
45. The Commissioner who in 2012 had primary
responsibility for data protection was Vice-President Viviane
Reding, then Commissioner for Justice (now Viviane Reding MEP).
In a speech in Munich on 22 January 2012, just before the new
data protection package was launched, she said: Box
5: Speech by Vice-President Viviane Reding, 22 January 2012
| Another important way to give people control over their data: the right to be forgotten. I want to explicitly clarify that people shall have the right—and not only the 'possibility'—to withdraw their consent to the processing of the personal data they have given out themselves. The Internet has an almost unlimited search and memory capacity. So even tiny scraps of personal information can have a huge impact, even years after they were shared or made public. The right to be forgotten will build on already existing rules to better cope with privacy risks online. … If an individual no longer wants his personal data to be processed or stored by a data controller, and if there is no legitimate reason for keeping it, the data should be removed from their system.
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46. The Commissioner continued to hold these
views, as is evident from her speech to the European Parliament
on 11 March 2014.[45]
Yet it seems that the Commission as a whole thought otherwise.
Their Observations to the Court of Justice were summarised by
the Court as follows. Box
6: Paragraph 90 of the judgment of the Court
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Google Spain, Google Inc., the Polish Government and the Commission submit in this regard that Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 confer rights upon data subjects only if the processing in question is incompatible with the directive or on compelling legitimate grounds relating to their particular situation, and not merely because they consider that that processing may be prejudicial to them or they wish that the data being processed sink into oblivion.
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47. We sought to clarify precisely what it was
that the Commission proposed as an answer to the third question
referred to the Court. The Commission Observations had already
been made public as a result of a freedom of information request,
and were therefore made available to us. The answer proposed by
the Commission reads as follows. Box
7: Answer proposed by the Commission to the third question
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The right to rectification, erasure or blocking of data granted by Article 12(b) of Directive 95/46/EC applies where the processing of the data does not comply with the provisions of the Directive at the time when the data subject submits his request, from which it follows that this right does not confer on the data subject an absolute right, as against the provider of a search engine on the internet, to prevent the indexing or storage in the "cache" memory of personal data concerning him published on the internet simply because he believes that this may be prejudicial to him, or because he wishes the information to be consigned to oblivion.[46]
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48. If the Commission now take this view on the
construction of Article 12 of the 1995 Directive, logically they
should no longer support Article 17 of the proposed Regulation,
either in their own wording, or a fortiori as amended by
the European Parliament.
The view of the Information Commissioner
49. David Smith, the Deputy Commissioner and
Director of Data Protection at the ICO, posted a blog on 20 May
2014, a week after the judgment was delivered, welcoming it.
50. Mr Wood pointed out to us that the Information
Commissioner, unlike most of his European colleagues, regulates
not just data protection but also freedom of information, and
is therefore perhaps well placed to balance the conflicting interests.[47]
He agreed that the term 'right to be forgotten' was "quite
a loaded term", and preferred "a right of erasure, which
is more what the European Parliament is focused on".[48]
51. Although Mr Wood said, more than once,
that the ICO supported "the concept behind the right to be
forgotten," his support was so hedged about with qualifications
that it seemed to us that he was doubtful whether he thought it
workable in practice. He said that there were outstanding issues
on which the ICO was taking legal advice, such as whether a judgment
binding on a .co.uk search engine might also be binding on a .com
search engine,[49] and
although he thought it was possible for the ruling to operate
in practice, he agreed that the judgment "certainly poses
practical difficulties for search engines in general".[50]
Unprompted, he said:
"Our concern is that the practical aspects work
for individuals, so we do not want to set expectations which cannot
be met. Going beyond the idea of a search engine, if information
is so proliferated on the internet, how would it be practical
to remove all that information? As a regulator, we only want to
enforce things in a way where we can achieve the end results …
we would say to the Government, "Let's think about ways to
make this practical and workable".[51]
The view of the Government
52. We rather doubt whether the Government believe
there are "ways to make this practical and workable".
Their position, as given to us by the Minister, could not be clearer:
"The UK would not want what is currently in
the draft, which is the right to be forgotten, to remain as part
of that proposal. We want it to be removed. We think it is the
wrong position. I do not think, both as an individual and a Minister,
we want the law to develop in the way that is implied by this
judgment, which is that you close down access to information in
the EU that is open in the rest of the world."[52]
53. Later he added:
"the Government does not support the right to
be forgotten as it is currently proposed by the European Commission
… It is currently in their draft; we oppose that and we have
made that clear in the negotiation … we are not going to
shift our view in negotiations that the right to be forgotten
must go. We are very clear about that and we are going to argue
the case both in terms of the wrongness of the principle—because
we believe in freedom of information, and transmission of it—and
the impracticality of the practice."[53]
45 Available at: http://www.europarl.europa.eu/sides/getDoc.do?type=CRE&reference=20140311&
secondRef=ITEM-013&language=EN&ring=A7-2013-0402 Back
46
Translation from the French. The original observations were in
Spanish. Back
47
Q15 (Steve Wood) Back
48
QQ14, 21 (Steve Wood) Back
49
Q14 (Steve Wood) Back
50
Q16 (Steve Wood) Back
51
Q21 (Steve Wood) Back
52
Q34 (Simon Hughes MP) Back
53
Q38 (Simon Hughes MP) Back
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