CHAPTER 5: THE VIEWS OF THE COMMITTEE
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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