In its newly published Fact Sheet on the Right to Be Forgotten, the European Commission has tried to dampen the negative reaction to the European Court of Justice (ECJ) Right to Be Forgotten decision by noting that the right is not absolute and that careful consideration of each case will be necessary before search engine operators will be required to censor search results:

[T]he right to be forgotten is not absolute but will always need to be balanced against other fundamental rights, such as the freedom of expression and of the media (para 85 of the ruling).  A case-by-case assessment is needed considering the type of information in question, its sensitivity for the individual’s private life and the interest of the public in having access to the information.  The role the person requesting deletion plays in public life might also be relevant.

In the first instance, it is the search engine operator that makes the determination.  To help make its decisions on the thousands of requests it already has received, Google has pulled together a panel of experts to decide when a person has earned the right to be forgotten.  The committee will be co-chaired by Google’s chairman Eric Schmidt and its chief legal counsel David Drummond.  Others so far include Jimmy Wales (Wikipedia founder), Frank La Rue (the UN’s special rapporteur on freedom of expression), and Luciano Floridi (philosopher at the Oxford Internet Institute).  This was a smart move by Google to avoid claims of arbitrariness or self-interest in the decision-making process.*

EU privacy leaders have just met in Brussels to develop principles as to how online companies should handle such requests in an effort to create uniformity across the EU.  They reportedly expect to develop “principles” by this fall to guide search engines in reaching the “right” decisions. 

For all this high-mindedness, it seems inevitable that whenever a claim is denied by a search engine operator, the local Data Protection Authority or a local court will decide the case. And denials will be aplenty if we believe the reported examples in the news (criminals, embarrassed politicians, etc.)  Denied cases will work their way through the local process and back up to the ECJ, and over the years, more decisions will be made defining and institutionalizing the Right to Be Forgotten.  That is the future at a high level, but the nitty-gritty of the process is really important and should not be overlooked. 

The first question we should all ask is:  Who speaks for the interests of the public in each case?  Where is the advocate in the process to argue that a particular piece of data is not irrelevant, outdated or otherwise inappropriate?  Why do we need a public advocate?  Because not only does the ECJ decision curtail speech, it curtails research.  It makes information that is relevant to someone, someplace in the world, harder to find.  It denies history, because facts never become outdated.  It enfranchises the worst tendencies of tyrants to dictate what is or is not appropriate to be made accessible to the masses.  Who stands between the tyrants and deletion of facts from search results? 

One principle all the blue ribbon panels might consider is that vindication of public and private rights should be done in the sunlight, and the decision-making standards to be applied should be transparent.  The proceedings and decision-making should open, with notice and an opportunity for public participation and comment.  In short, there should be an advocate for the public interest because, in fact, decisions on the Right to Be Forgotten are adversarial. 

It is true that such a process only further guarantees that individuals will be remembered.  After all, Mr. Gonzalez, who brought the case that led to the decision, will be remembered forever as the ECJ decision bears his name and includes a link to the newspaper notice of his public debt that he wished forgotten.  But the person asking for the relief is already known, remembered and his or her data processed, so the debate is over whether further processing should cease.  There is no harm in a further public discussion of the facts.

Also, an adversary process at least helps ensure that the evidence provided to search engine operators will be truthful, accurate and relevant.  Google has been criticized for requiring a photo identification for submissions, but how else will a search engine operator know the person making the request is the data subject or his or her authorized representative?  Only the data subject or his or her lawful representative (such as a parent in the case of a minor child) should have standing to bring a claim.  Each reason articulated for removal should be truth-tested, and this process should not be a substitute for judicial proceedings to vindicate claims of defamation, for example. 

Do we really want these decisions to be made in the dark without the public interest being represented?  Some may argue that this is much to do about nothing because all that is at issue is a link when a person’s name is used as a search term.  But they are mistaken.  The ECJ decision is the first, not the last, word on the Right to Be Forgotten.  There is no way to guarantee that the logic and force of the decision will be constrained to the data subject’s name alone or to search engine operators.  The Wall Street Journal reported on June 3 that one of the attendees at the EU regulator’s conclave noted above said: 

Among the issues that regulators plan to discuss are both how they think Google should apply the ruling—and how broadly they think the decision should apply to other companies beyond Google . . . .  At issue could be whether people should also be able to demand the removal of searchable links posted by users of Twitter Inc.'s microblogging service.

We need a public advocate to speak for the public interest in free speech, access to information that is otherwise public and available online, and procedural due process that ensures against arbitrary decision-making to remove information from search results.  Much more is at stake than a vanity search and its embarrassing results.

© 2014 Perkins Coie LLP

*Disclaimer: While Perkins Coie represents Google in various legal issues, the views expressed throughout this client update are the sole opinion of the author.