Recommendations on The Right to Be Forgotten by La Quadrature du Net and Reporters Without Borders
The European Union Court of Justice ruling of 13 May 2014 on a case brought by Google Spain highlighted the problems for the protection of freedom of expression and the right to information posed by the right to de-indexation from search engine results and, more broadly, the right to be forgotten. Privacy and freedom of expression are fundamental rights of equal value (articles 8 and 10 of the European Convention on Human Rights and articles 8 and 11 of the Charter of Fundamental Rights of the European Union). Whenever one conflicts with the other, a balance must be reached under a judge’s authority because, as a matter of principle, one cannot be given more importance than the other.
The EUCJ ruling requires search engine operators such as Google to deal with requests made by members of the public for the removal of search engine results attached to their names. Responsibility for a decision involving individual freedoms that should be handled by a court is thereby delegated in practice to a private sector company. This delegation of responsibility is all the more dangerous because the ruling is based on vague and general principles that provide no guarantee for freedom of expression.
In response to the EUCJ ruling, Google established an advisory committee that is currently working on the formulation of more precise rules for search engine operators on how to respond to requests to be removed from results. The questions that Google is asking on how to strike a fair balance between the right to de-indexation from results and the public’s freedom of expression and information are perfectly legitimate, but the fact that a private sector company is posing these questions accentuates the growing trend to privatize the implementation of Internet regulation, and is therefore unacceptable.
National data protection bodies such as the the CNIL – the French data protection authority –,are meanwhile also working on the formulation of precise rules in response to the EUCJ’s ruling. But, in so doing, they too are exceeding their powers. In the absence of sufficiently clear legislation, such government agencies have neither legitimacy nor competence for the formulation and application of rules designed to ensure a balance between the protection of privacy and freedom of expression.
The response must therefore come from national and European legislators. It is their duty to establish a clear legal framework that takes full account of freedom of expression and is implemented by the courts.
With this in mind, Reporters Without Borders and La Quadrature du Net jointly drafted this paper, which identifies points of concerns and makes recommendations designed to reconcile the right to privacy with freedom of expression in a reasonable manner under the aegis of the courts and not the private sector or government agencies. We now present them as a contribution to the ongoing debate on the right to be forgotten.
1. Misapplying The Right To Privacy To Editorial Content
The provisions on the protection of persondal data from the directive of 24 October 1995 have been applied to editorial content and other informations of public interest, based on the fact that they broadly define “data of a personal nature” as “any information concerning an identified or identifiable physical person,” . This is so even though both article 9 of this directive and article 67 of the France’s Law on Information Technology and Freedoms provide an exception for journalistic purposes.
As a result, under the CNIL’s supervision, data protection laws are already widely used to curtail freedom of expression before the EUCJ ruling on the right to be removed from search engine results. This was made clear in a recent statement by CNIL president Isabelle Falque-Pierrotin: “Complaints involving the right to be forgotten are almost all honoured and the content is withdrawn. They concern comments in blogs, an unwanted photo or a court decision that someone wants suppressed.”1
Using data protection laws to obtain the removal of published content and restrict freedom of expression (through the right to opposition and rectification) under the ruling of administrative authority, constitutes an extremely dangerous circumvention of the traditional principle of the judicial protection of freedom of speech (established, in France, with the Law of 29 July 1881 on press freedom).
This is why the vice-president of a Paris high court said in a ruling on 12 October 2009: “The constitutionally and conventionally guaranteed principle of freedom of expression forbids (…) any violation of the rules established by the Law of 6 January 1978, which is not one of the laws that was specially created to restrict this freedom in according with the second section of article 10 of the European Convention [on Human Rights].”
Similarly, a Paris appeal court ruling of 26 February 2014 said that suppressing online links to an article may violate media freedom: “The court is of the view that forcing a media outlet to modify its online archive of articles (…) either by suppressing information itself, withdrawing surnames and first names of persons concerned by judicial decisions, thereby depriving the article of any interest, or by restricting access by modifying the usual online links, exceeds the restrictions that may be placed on media freedom.”
At the European level, a ruling by the European Court of Human Rights on 16 June 2013 rejected a request by two Polish lawyers for the suppression of a newspaper article that had been deemed libellous by a Polish court but continued to be accessible on the newspaper’s website. Seeking a balance between the right to defend one’s reputation and the right to information, the European Court ruled that withdrawal of the article “would amount to censorship and to rewriting history.”
These decisions shed light on the appropriate scope that should be given to the exception for journalism. Provisions on the protection of personal data should not affect freedom of expression. They should remain inapplicable to all editorial content and all information of public interest.
Given a certain desire on the part of European Union member states to follow up on the EUCJ ruling by considerably reinforcing the right to be forgotten and the right to deletion, it is important to restrict these rights in order to protect freedom of expression. The rules must be amended to reinforce the exception for journalism by extending it to all editorial content and other information of public interest.
After this legislative clarification has been enacted, the right to privacy and the freedom of expression can be properly balanced under national and international law and the relevant jurisprudence (for example, in France, article 9 of the civil code or articles 226-1 and 226-2 of the penal code), while respecting the existing guarantees of freedom of expression (such as those in the 1881 media law).
- Base arbitration between the right to privacy and freedom of expression on common law provisions or, when appropriate, on respect for the guarantees applicable to media rights, and not on special data protection laws.
- As part of the negotiations under way on European regulation on personal data, extend the exception for journalism to all editorial content and information of public interest and restrict application of the right to be forgotten under article 17 to data put online by the data subject himself.
- Pending the adoption of the European regulation, establish a moratorium on measures based on this special right that restrict freedom of expression and the right to information. Or otherwise adopt interim measures that fully respect freedom of expression.
- At the European level, consider complementing the rules on protection of privacy with legislation that protects freedom of expression, above all in order to reconcile these two fundamental rights.