EU Data Protection law: a 'right to be forgotten'? - European Union Committee Contents


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.

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

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.

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

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]

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 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: 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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