Case Studies
Privacy and the Right to Be
Forgotten
Henri was a well-known shopkeeper and
café owner in a small town on the outskirts
of Paris. He was thrust into a vortex of
controversy in the summer of 2007 when he
was falsely accused of sexual harassment
by a disgruntled clerk under his employment.
Henri was completely exonerated, but links
to old, damaging articles in the local
newspaper remained accessible through
Google. That newspaper was particularly
aggressive in its initial coverage of the
events and did not give Henri the benefit of
the doubt, despite his protestations of
innocence. Years later, people still brought
up the incident to him or his family, often with
an accusatory tone. Henri wanted this
portion of his past, full of these false
allegations and innuendos, to be expunged.
Since most people came across this
reporting through their search of Google.fr,
he had asked Google for its help in
suppressing the links to these old stories.
Google was not interested in responding to
his repeated requests for its assistance in
removing these links.
There are two attributes of internet data that
cause problems for victims like Henri:
internet data are both permanent and easily
accessible. Web pages are rarely deleted,
and sometimes those that are deleted are
nevertheless preserved by caching services
like Google Cache and the Internet Archive.
At the same time, search engines like
Google and Bing make all of those data
exceptionally easy to access.
It seemed that people like Henri would never
be able to control incriminating information
about their past circulating on the internet.
However, in 2014 the European Union Court
of Justice issued a surprising court order
against Google. It demanded that the search
engine company remove hyperlinks that
connect search engine users to content that
is “no longer necessary,” or “inadequate,
irrelevant, or no longer relevant.” Exceptions
are warranted if there is some
“preponderance of public interest” at stake.
Thus, if someone like Henri asks Google to
remove these links to “irrelevant” and
52
outdated material, the search engine
company must oblige this request.
The European Court’s decision was based
on the “right to be forgotten,” which was
cited as a basic aspect of a person’s overall
privacy rights. The legal authority of this right
to be forgotten is found in the Data
Protection Directive adopted by the
European Parliament in 1995. The Directive
established a comprehensive privacy
framework in the European Union, requiring
that data “controllers” respect the privacy
rights of all “data subjects.”
Advocates of this right claim that individuals
should be able to insist on the removal of
old, irrelevant material that infringes on their
basic privacy rights. Skeptics of this new
legal development, on the other hand,
expressed their unease about the burdens
placed on search engine companies like
Google. There was also concern that the
deletion of these links for private interests
could lead to “counterfeit histories.” What
about the public’s right to know this
information that is now filtered out thanks to
an individual’s complaints about irrelevancy?
53
54
55
The EU’s decision establishes a new but
more precarious boundary between privacy
and free speech that clearly favors privacy.
The decision is in keeping with Europe’s
tradition of giving equal weight to privacy
and free speech rights. In the United States,
however, priority is generally given to free
speech rights, and so it is probably unlikely
that a version of the “right to be forgotten”
will be codified in U.S. law.
Google agreed to comply with the European
Court’s ruling but acknowledged the
difficulties with implementation. Within a few
months after the ruling, Google had received
over 100,000 requests for the removal of
links to “irrelevant” or “unnecessary
information.” The EU’s order, however,
applied only to European domains such as
Google.fr or Google.co.uk—not to
Google.com itself. Some privacy rights
advocates claim that this doesn’t go far
enough and that the ruling should apply
globally in order to fully protect the data
rights of European citizens. There are other
questions about how extensively to apply
European privacy rules, such as whether or
not publishers should be allowed to appeal
Google’s decision to remove links to their
content.
Questions

1. Do you sympathize with the plight of
   someone like Henri? Do you agree that
   the right to be forgotten is an aspect of
   one’s overall right to personal privacy?
2. Has the European Union recalibrated
   the balance between privacy and free
   speech too heavily in favor of privacy?
3. Has Google gone far enough to protect
   this right from being deprived?