On 26 November 2014 the European Union’s Article 29 Data Protection Working Party (“29WP”) published its guidelines for implementing the “right to be forgotten.” The thirteen guidelines, while not legally binding, are to be used by search engines and Data Protection Authorities when evaluating petitions from individuals to de-link online content that appears when searching for their name. There are three major areas of concern: notification, relinking, and international borders.
Notification and Re-linking
Most notably, the guidelines exclude content providers from all stages of the de-linking process. While in support of contacting “the original editor…in order to obtain additional information for the assessment,” routinely notifying webmasters of de-linking is not sanctioned. Some believe this is to avoid the “Streisand effect” where a website publicizes notification of the de-linking and brings additional traffic to that webpage, nullifying the request for and use of de-linking in the first place.
Circumnavigating the content provider does not offer all parties in the “right to be forgotten” chain equal opportunity. Without knowledge of de-linking, websites cannot challenge requests made to search engines or petition for re-linking. It is unclear why the 29WP did not place its focus on suppressing public notification of de-linking by the content provider instead of denying content providers this pertinent information.
Furthermore, this lack of information can cause unforeseen effects through altered web traffic. It is unknown how this ruling will affect sites like Wikipedia that rely on traffic from search engines, crowdsourcing, and user donations, especially if unaware that their content is not searchable. In addition, without this knowledge, webmasters might attribute altered or low traffic to other possible causes such as public disinterest, which might not be the case.
Compounding the issue, there currently is no official mechanism proposed for re-link requests. Yet some links have already been reinstated this past summer after articles and blogs were targeted due to user comments, but not the author’s posted content. This re-linking would not have been possible if Google hadn’t notified the webmaster of these sites after the de-linking was granted.
The issue of information’s future importance is also not addressed in the guidelines, bringing further attention to the issues of notification and re-linking. Peggy Valcke, a member of Google’s Advisory Council on the Right to be Forgotten, acknowledges there are issues related to this topic, questioning “who will act on behalf of the public interest” when information becomes relevant in the future – say in the case of a private figure becoming a public figure – and if links should be restored by default after a period of time.
There is no doubt that the right to be forgotten can encroach on the right to freedom of speech. Search engines are now being asked to make daily decisions weighing the freedom of speech against the right to personal data protection. The guidelines bring this conflict to a global scale, insisting that all search engine subsidiaries, including .com, are de-linked in addition to local and EU search engines. Many take issue with this asa way that the EU is now attempting to impose law outside its constituency, negating national law, and stirring local freedom of speech issues.
Additionally, international implementation of these guidelines relies on local governments being fully aware of an individual’s global presence. While the guidelines state that public figures and issues of public interest may not allow de-linking, it is uncertain if local petition reviewers and governments will be aware of an individual’s status in another country.
Google is fighting the implementation of the right to be forgotten across all its subsidiaries by arguing that most searches in the EU are done with local engines, not the .com engine. However, to date this justification has not been enough for the 29WP to overturn this guideline.
One important consideration taken into account by the 29WP in terms of third party rights addresses the use of search tools within websites, or, “search engines with a restricted field of action”. De-linking should not apply in these cases, including websites of newspapers, the Working Party advises, as it would impede access to information via the original provider. Although website search functions powered by outside engines like Google should not be affected by the de-linking, who will be able to ensure this when the EU is imposing almost blanket compliance with regard to all other search options?
The Right to be Forgotten complicates issues of freedom of speech and data privacy for all those involved, including third parties such as authors and national governments. Unfortunately, conversations thus far have focused on the interaction between individuals and search engines who have to enforce it. In the future, more consideration should be given to ensure equal rights to all parties involved in the de-listing operation.
Stacie Walsh is an LSE MSc student
This post originally appeared on the LSE Media Policy Project Blog and is reproduced with permission and thanks