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


The impact of the judgment

54.  In the early 1990s, when the World Wide Web was in its infancy and Google not even in gestation, it may have seemed reasonable to include in the first EU data protection legislation a right for the data subject labelled 'The right to be forgotten'. Developments in the subsequent twenty years have made clear that the right is as elusive as the name is misleading. It is unfortunate that the Court of Justice should have attempted to interpret that provision in disregard of those developments.

55.  We agree with Professor Floridi that the Court "could and should have interpreted the Directive much more stringently, concluding that a link to some legally available information does not process the information in question." Given that the Court has ruled that a search engine does fall within the definition of "data controller" in the current Directive, that definition must be amended in the draft Regulation to accord with reality. In particular, the possibility of ordinary users of search engines falling within that definition must be eradicated.

56.  We cannot say that it is impossible for Google to comply with the judgment, because they are attempting to do so, and Professor Floridi, for instance, believes they can. But in our view the judgment is unworkable. It ignores the effect on smaller search engines which, unlike Google, may not have the resources to consider individually large numbers of requests for the deletion of links. It is wrong in principle to leave to search engines the task of deciding many thousands of individual cases against criteria as vague as "particular reasons, such as the role played by the data subject in public life". We emphasise again the likelihood that different search engines would come to different and conflicting conclusions on a request for deletion of links.

Future negotiations on the data protection package

57.  On 3 July 2014 the Italian Presidency[54] circulated to the Working Group on Information Exchange and Data Protection (DAPIX) a note entitled 'Right to be forgotten and the Google judgment'[55] which states: "The purpose of this note is, building on the Google judgment, to examine how the future legislation on the right to be forgotten and the right to erasure should be developed." The note proceeds on the assumption that Article 17 will continue to form part of the draft Regulation, but canvasses the views of Member States on whether minor changes need to be made in the light of the judgment.

58.  The Presidency seem to assume that the law as set out by the Court in its interpretation of the Directive must continue to be the law as stated in the draft Regulation. We believe this is a profound error. The task of the Court is to interpret the current law. It is for the Council and the European Parliament, as legislators, to make the law for the future. If, as we believe, the current law as interpreted by the Court is a bad law, it is for the legislators to replace it with a better law. It is significant that a large number of reservations have been entered against the latest draft text of Article 17 by many Member States, for a great variety of reasons.

59.  The Italian Presidency have said they hope to finish the negotiations by the end of this year, but there seems little likelihood of that. The Minister told us that the Latvians, who take over the Presidency in January 2015, would like to get it completed in the first part of that year. By then three years will have passed since the original Commission proposal, and we too would welcome a conclusion of the negotiations, but not if the text is a compromise retaining all the worst elements. The Government, and governments of other Member States with similar views, must insist on a text which does away with any right allowing a data subject to remove links to information which is accurate and lawfully available.

Conclusions and recommendations

60.  It is clear to us that neither the 1995 Directive, nor the Court's interpretation of the Directive, reflects the current state of communications service provision, where global access to detailed personal information has become part of the way of life.

61.  It is no longer reasonable or even possible for the right to privacy to allow data subjects a right to remove links to data which are accurate and lawfully available.

62.  We agree with the Government that the 'right to be forgotten' as it is in the Commission's proposal, and a fortiori as proposed to be amended by the Parliament, must go. It is misguided in principle and unworkable in practice.

63.  We recommend that the Government should ensure that the definition of "data controller" in the new Regulation is amended to clarify that the term does not include ordinary users of search engines. (Paragraphs 42 and 55)

64.  There are strong arguments for saying that search engines should not be classed as data controllers. We find them compelling.

65.  We further recommend that the Government should persevere in their stated intention of ensuring that the Regulation no longer includes any provision on the lines of the Commission's 'right to be forgotten' or the European Parliament's 'right to erasure'.

66.  We make this report for the information of the House. We continue to keep the draft Data Protection Regulation and Directive under scrutiny.

54   Italy holds the rotating Presidency of the European Union from 1 July to 31 December 2014. Back

55   Council document 11289/14. Back

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