The EU Article 29 Working Party provided clarifications on the implementation of the privacy right to be forgotten following the famous decision of the European Court of Justice involving Google search engine.
The decision of the European Court of Justice (ECJ) on the right to be forgotten has led to major discussions. We had covered in this post the consultations run by Google in order to identify the best way to implement the court decision. Now the Article 29 Working Party, the European privacy advisory body made of European privacy regulators, issued an opinion on the above mentioned court decision and how Google and other search engines should enforce it.
Entities which shall comply with the ECJ decision
The ECJ decision applies to the data processing carried out by the context of the activities of a subsidiary on the territory of a Member State, set up to promote and sell advertising space on its search engine in this Member State with the aim of making that service profitable. Therefore the decision should not apply to entities that don’t have subsidiaries in Europe. However, the principle shall be tested under the upcoming EU Privacy Regulation extending the scope of European privacy rules to any company offering its services in the European Union.
No removal of initial information
The enforcement of the right to be forgotten does not require to remove the initial information which will still be accessible using other search terms or by direct access to the source. The question raised by commentators is why search engines rather than sites where the information was initially made available are obliged to enforce the right to be forgotten.
Enforceability also on .COM websites
In order to make sure that the privacy right to be forgotten is effectively enforced, this shall be implemented by search engines not only on European domain names, but also on .COM domains. The risk otherwise would be that the ECJ decision can be easily circumvented.
Individuals holding a right to be forgotten
Claims relating to the enforcement of the right to be forgotten can be brought where there is a clear link between the individual and the EU, for instance where the data subject is a citizen or resident of an EU Member State. Therefore an EU citizen living in the US might rely on the ECJ decision.
How to assess the right to be forgotten
The Working Party provided criteria to guide search engines on the assessment of the groundness of privacy right to be forgotten claims which shall be balanced with the “interest of the general public in having access to information“.