My dissertation analysed Costeja v Google, the highly controversial case that increased the privacy regulations search engines are subjected to. After analysing the case, discussing how it limits the freedom of expression and then comparing it to the stance of the US, it was concluded that in Costeja the CJEU creatively interpreted the law to generate a new ‘right’, that has so far proven to be inadequate.
Costeja, the plaintiff, argued that Google was unnecessarily tarnishing his reputation, the search engine indexed a webpage containing information about his insolvency. Costeja argued that Google should be responsible for concealing the webpage under the European Union Directive 95/46/EC (the Directive). He had to establish search engines were ‘controllers’ of information and the Directive allowed a general ‘right to be forgotten’.
The CJEU held that search engines are ‘controllers’, simply because they aid individuals to find information. They dismissed the expertise of the Article 29 Working Party, who defined search engines as ‘information location tools’, emphasising they have no control over the information published on webpages.
More controversially, the CJEU held the Directive allowed for a general ‘right to be forgotten’. They creatively combined Article 12(b) that permits a right to erasure and Article 14(a) that allows a right to object to the processing of personal data on ‘compelling grounds’. However, the Advocate General had previously stated that a ‘subjective preference’, about information is not a ‘compelling’ reason to have a webpage censored. Furthermore, the Directive could not have been intended to apply to search engines, because it was enacted before their globalisation. Additionally, neither of the Articles refers to the status of a search engine or indexed webpages.
In establishing that search engines are ‘controllers’ of information and allowing for a general ‘right to be forgotten’, the CJEU held that search engines are now responsible for deindexing webpages at the request of individuals.
The lack of the CJEU’s foresight when creating this new right, can be seen in the vague limitations that they established. They held that an individual could have a webpage deindexed if the information was ‘excessive’ ‘inadequate’ or ‘irrelevant’ and without a ‘public interest’. The CJEU failed to further define these limitations, leading to conflicting cases and the House of Lords to deem the criteria as ‘unworkable’.
Costeja and the freedom of expression was then discussed. The ‘right to be forgotten’ limits the freedom of expression. However, this may allow individuals to ‘shape their own lives’ and not have their futures controlled by information that is readily available on the Internet. Equally, information protects people. Therefore, it is submitted that before webpages are deindexed all the potential consequences of deindexing that information should be considered, to avoid damaging consequences.
After analysing the freedom of speech in the US, it is submitted that they are unlikely to introduce a similar right. However, in the demand for online privacy, even they have introduced legislation such as the Children's Online Privacy Protection Act. It is argued that the EU should have followed this approach and taken small steps to legislate for online privacy rights that are specifically construed and clearly defined, instead of introducing one unspecific overarching right.
In conclusion, the ‘right to be forgotten’ is the first substantial attempt to afford European citizens a means to control the information that is revealed about them online. However, it is submitted that this new right should have been created by legislators. This would have allowed the right to be adequately debated by Internet experts and civil liability groups to create a stronger and clearly defined right. It is predicated that many cases will be presented before the national courts to determine the boundaries of the ‘right to be forgotten’.