Right to Be Forgotten Heads Back to EU’s Top Court

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By Stephen Gardner

The European Union’s highest court will examine the right to be forgotten after a French court asked whether search engines must automatically agree to delist webpages containing sensitive data about individuals.

As of now, search engines such as Alphabet Inc.'s Google and Microsoft Corp.'s Bing, in deciding delisting requests, balance the right to be forgotten against the public interest in keeping information available.

Carlo Piltz, a data protection attorney at Reuschlaw in Berlin, told Bloomberg BNA May 30 that the case “could be considered as a more detailed and specified set of questions” in follow up to the European Court of Justice’s May 2014 ruling establishing the right to be forgotten in relation to search engines.

Steve Peers, professor of EU Law at the University of Essex, told Bloomberg BNA May 30 that “this case gives the ECJ its first opportunity to clarify many key issues relating to the ‘right to be forgotten’, providing more guidelines as to when Google and other search engines have to give effect to that right.”

According to Google, it has received delisting requests covering approximately 2 million links and has removed 43 percent of them.

French Case

The case at hand arose in France after Google refused delisting requests from four individuals for links to webpages containing sensitive information about them, including details of criminal convictions. The individuals complained about Google’s decision to France’s data protection authority (CNIL) and, subsequently, to the French court when CNIL backed Google.

Under EU law, the processing of sensitive personal data, such as health data or data on criminal offenses, is “in principle not allowed,” but an exemption is permitted “if personal data is processed solely for journalistic purposes or for those of artistic or literary expression,” Piltz said.

In practice, the exercise of this exemption most often relates to news articles, and the French court was asking if search engines can “benefit from the journalistic privilege of a website operator,” Piltz said.

The Luxembourg-based EU Court of Justice can take up to two years to deliver judgments.

The notice of the referral to the EU court was published May 29 in the EU Official Journal.

To contact the reporter on this story: Stephen Gardner in Brussels at correspondents@bna.com

To contact the editor responsible for this story: Donald G. Aplin at daplin@bna.com

For More Information

Full text of the referral is available at http://src.bna.com/pjY

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