The EU Sub-Committee on Home Affairs, Health and Education of the UK House of Lords has published its Second Report for 2013-14, entitled EU Data Protection Law: A ‘Right to Be Forgotten’? (the “Report”). The Report summarizes the findings of the Sub-Committee’s investigation into the right to be forgotten, and was triggered in large part by the European Court of Justice’s (“ECJ’s”) decision in Google v. Costeja (Case C-131/12, “Costeja”). In Costeja, the ECJ held that individuals have a right to request that their personal data no longer be displayed by online search engines in the results for searches made on the basis of the individual’s name, particularly if the information is inadequate, irrelevant or excessive (commonly referred to as the “right to be forgotten”).
The Report concludes that the current law no longer reflects the reality that the global online sharing of personal data has become a way of life. The Report criticizes the Costeja decision as constituting “bad law,” and asserts that while large, established search engines may be able to bear the financial burden of implementing the right to be forgotten, smaller search engines are unlikely to have the resources to do so. The Report goes on to say that it is “no longer reasonable or even possible…to allow data subjects a right to remove links to data which are accurate and lawfully available,” and calls the right to be forgotten “misguided in principle and unworkable in practice.” In its conclusion, the Sub-Committee recommends that the UK government seek to ensure that the forthcoming EU General Data Protection Regulation does not include such a right.
While the Report carries no direct legal weight, its strongly-worded critiques reflect growing unease in the UK over the impact of Costeja and the right to be forgotten. Over the past few months, the right to be forgotten also has been criticized by Simon Hughes, the Minister of State of the UK Ministry of Justice, and several journalists who have complained that search engines have wrongly removed links to their articles from search results. Whether the Report has any meaningful impact will become clearer once the negotiations regarding the General Data Protection Regulation resume later this year.