The European Court of Justice, in a decision rendered on May 13, 2014, held that search engines are considered data controllers under the Directive of October 24, 1995 on data protection, and as such they must provide data subjects with a “right to be forgotten.”

In that ruling, the European Court outlined that an individual is entitled to request search engines to have links and URLs removed from the lists of results displayed following a search on the basis of a person’s name.  This means that to enforce the right to be forgotten, an individual does not have to request the deletion of content by a website editor, but can make the request of the search engines instead, thereby making the content more difficult to locate on the Internet.

However, the European Court also made it clear that the right to be forgotten is not an absolute right, and must be evaluated on a case-by-case basis taking into consideration the extent to which it interferes with the economic interests of search engines.  In the ongoing discussions regarding the European regulation which will replace the European Directive of 1995, the right to be forgotten is reinforced, raising concerns regarding countervailing rights such as the right of free speech.   As a consequence, the European Court stressed that the right to be forgotten or de-listed depends mainly on the nature of the information, how sensitive it is, and the public interest in accessing the information.

Further to that decision and in order to be compliant, search engines have published specific forms to be filled out by claimants who want to request the deletion of their information from search results.  However, several complainants have received negative responses from search engines and have submitted complaints to the European Data Protection agencies throughout Europe claiming that search engines did not comply with the European Court of Justice’s decision.

Following these complaints, the European Data Protection agencies, after meeting with search engines representatives, decided to implement a common tool box to handle complaints.  That common toolbox will allow for a coordinated approach to the handling of claims alleging that search engines have not adequately responded to “right to be forgotten” requests.

This coordination will be implemented by a network of dedicated contact persons in charge of developing common case handling criteria to manage complaints.

The network will provide the data protection authorities with:

  • a common record of decisions taken on complaints,
  • a dashboard to help identify similar cases and difficult cases.

This cooperation between the European Data Protection agencies is intended to bring about the best possible coordination of the European Member States in their response to these complaints, and to ultimately effectuate and enforce the right to be forgotten.  Furthermore, this coordination is intended to enable complainants to receive a uniform response to their complaints from data protection authorities throughout Europe.