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A powerful new legal analysis lays bare the facts about the Right to be Forgotten

Slide2 Review by Cristina Pauter

“The right to be forgotten on the Internet: Google versus Spain” (Artemi Rallo, ed. CEPC, Madrid, 2014) is a timely work (Spanish text only) that examines an emerging legal issue in which singular fundamental rights are threatened by the rapid development of knowledge and the modern information society.

The initial illusion that compulsively invited us to use the Internet and that appears in the indexes of its search engines (particularly Google) has given way to an emerging demand for the cancellation of personal data on the Internet before the distressing fear that they might harm image, privacy and individual reputation – both for now and fundamentally for the future.

Artemi Rallo Lombarte

Artemi Rallo Lombarte

This book – written by one of Europe’s foremost privacy experts – sets out a legal analysis of every case on the right to be forgotten known to the Spanish Data Protection Agency (AEPD) since 2007. It deals in particular with the case Google vs. Spain which was decided by the European Court of Justice (ECJ) in its judgment of 13 May 2014.

In this litigious version of David versus Goliath – which was used to raised unfounded risks to innovation – there prevailed an understanding of the legitimate demand of guaranteeing the right to data protection enshrined in the Charter of Fundamental Rights of the European Union.

The book’s analysis and insights are particularly valuable because the author brings into play both his practical experience during the term that he was Director of the Spanish Data Protection Agency (AEPD) and an in-depth knowledge on the issue as Professor of Constitutional Law.

Artemi Rallo uses a case methodology to show in detail the resolutions in which the AEPD recognized quite early-on that a right of cancellation should apply to Google and that the company has an obligation to erase the links to information previously published in different sources such as official gazettes – a specific Spanish scenario – or even digital media or newspaper archives.

In this regard, the ECJ ruling has completely backed the innovative position maintained over time by the AEPD and has shown how to fairly balance two fundamental, yet qualified, rights: freedom of expression and the right to privacy and anonymity. The author considers criticisms against the right to be forgotten, which some claim to be not only a restriction of free speech but also a censorship activity and historical manipulation. The author observes, however, that such concerns are exaggerated because the Right to be Forgotten involves neither removal of any information of public interest nor deletion of primary sources.Leon Jones RTBF courtroom cartoon

Because of the international dimension of the problem, the book also deals with the study of the regulation of the right to be forgotten in some American and European countries and presents the European jurisdictional background on the evolution of the right to data protection based on the ECHR and the ECJ statements.

]In its main chapters, the book explains that the case originated from a prejudicial action of the National High Court on some questions regarding the interpretation of the Data Protection Directive, such as the territorial scope of Directive 95/46, the liability of an Internet search engine service over the links to information that it provides and whether the Directive establishes a so-called right to be forgotten.

In this litigious version of David versus Goliath – which was used to raised unfounded risks to innovation – there prevailed an understanding of the legitimate demand of guaranteeing the right to data protection

In stark contrast to the Advocate General’s opinion, this ruling states that any person has the right to request Google and other search engines operating in the European Union to remove links to results generated by a search for their name in circumstances where the information is “inadequate, irrelevant or no longer relevant”.

Although Google claimed that it is outside Spanish jurisdiction and therefore was not subject to Spanish law, the EU judges pointed out that the operator of a search machine must be regarded as a “data controller” under Data Protection laws in those EU countries where the company establishes a branch to promote and sell advertising. They also made clear the feasibility of the right to be forgotten based on the fact that search engines already remove links under the E-Commerce Directive and they openly rejected that the right to be forgotten would have a chilling effect on fundamental rights.

Rallo’s publication can be considered an authoritative reference book due to several points. First, it describes in a clear and precise way the construction-process of a “pure” right of the Internet. Second, it highlights the importance of the right to be forgotten as a valuable tool in enabling individuals to have stronger rights in terms of controlling the dissemination of information about them, their privacy, dignity and freedom. Finally, it nurtures a full and proportionate understanding of the important implications of the ECJ decision.

More about the author: Artemi Rallo Lombarte is Professor of Constitutional Law at the University JaumeI of Castellón (Spain). He was Director of the Spanish Data Protection Agency (2007-2011), President of the Ibero-American Data Protection Network, Deputy Chairman of the European Group of Data Protection Authorities and Director of the Center for Legal Studies of the Ministry of Justice.

In previous publications he has dealt with the study of social networks, European data protection law, independent authorities, electoral guarantees and pluralism. In recent years he has lectured extensively at universities and scientific meetings throughout the world.