According to the House of Lords Home Affairs, Health and Education EU Sub-Committee, the ‘right to be forgotten’ is unworkable, unreasonable and wrong in principle
A new report from the House of Lords Home Affairs, Health and Education EU Sub-Committee, arising from a speedily held inquiry into the issue and published on 30 July, states that the recent judgment of the CJEU in the Google Spain/Costeja case is wrong in principle. The report claims that the assumption of the Presidency that the 'right to be forgotten' exists has created an unworkable and unreasonable situation.
The Committee does not agree with the Court's ruling. Its report states that the Court's interpretation of Article 12 of the 1995 Directive – drafted three years before Google was founded – has resulted in the ruling that the search engine's European sites must process the more than 70,000 data removal requests that it has received since its web form went live on 30 May, 17 days after the judgment.
After having heard evidence from data protection experts, the Information Commissioner's Office, the Minister for Justice and Civil Liberties, Simon Hughes, and Google itself, the Committee applauds the UK Government's stance on the issue, and agrees that it must continue to fight to ensure that the updated 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'.
Committee Chairman, Baroness Prashar, said:
'Although this was a short inquiry, it is crystal clear that the neither the 1995 Directive, nor the CJEU's interpretation of it reflects the incredible advancement in technology that we see today, over 20 years since the Directive was drafted. Anyone anywhere in the world now has information at the touch of a button, and that includes detailed personal information about people in all countries of the globe. "We believe that the judgment of the Court is unworkable for two main reasons. Firstly, it does not take into account the effect the ruling will have on smaller search engines which, unlike Google, are unlikely to have the resources to process the thousands of removal requests they are likely to receive.
Secondly, we also believe that it is wrong in principle to leave search engines themselves the task of deciding whether to delete information or not, based on vague, ambiguous and unhelpful criteria, and we heard from witnesses how uncomfortable they are with the idea of a commercial company sitting in judgement on issues like that.
We think there is a very strong argument that, in the new Regulation, search engines should not be classed as data controllers, and therefore not liable as 'owners' of the information they are linking to. We also do not believe that individuals should have a right to have links to accurate and lawfully available information about them removed, simply because they do not like what is said.
Technology advances at ever increasing speeds and it is incredibly difficult for legislation to keep up - never mind 'future proof' - the unforeseen leaps that technology is bound to make. However, what we can do is ensure that the Regulations and Directives that we do draft are sensible, taking into account the current situation and the likelihood of ever-increasing amounts of available data, and decide not to try and enforce the impossible.'
The Report's conclusions and recommendations were as follows:
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'.
A copy of the Committee's report, EU Data Protection Law: a 'right to be forgotten'?, transcripts of oral evidence sessions and written evidence submitted to the inquiry is available on the Committee's inquiry page.
Laurence Eastham writes:
Unforgettable, unworkable and unreasonable – the Lords Committee is almost the new Nat King Cole. But the report does strike the odd bum note.
There are many aspects of the report with which I agree. But, despite the fact that it is well reasoned, I fear this inquiry always had the feel of a kangaroo inquiry: rushed and with one verdict always firmly in mind.
The report seems to lay too heavy an emphasis on the inconvenience that arises for business – eg seeming to suggest that start-ups cannot cope with 'privacy by design'. The burden that the ruling has placed on small businesses seems to be somewhat speculative. The Committee report Professor Floridi's view that Google can withstand the burden but seem more concerned about that burden than Google itself.
It is worth emphasising that the Committee publishing this report does not complain of a lack of balance in the CJEU judgment – as so many of us have. It does not want any such right to exist at all. It should be about balance – I was very taken too with the 'information sedimentation' concept (from Powles and Floridi) - but it seems that isn't the Committee's view.
I think it should be about balance and lately, when faced with the more absolute view in this area, I find myself wondering about some of the other restrictions on information that create a burden: Ryan Giggs, Jon Venables and every terrorist incident that we have had over the last few years. Switch the context whichever way suits, and there are few who really don't want a balance to be struck.