Google should not get a say in what is to be forgotten

The revelation, last week, that Google had delisted a number of search results related to the Quinn family has drawn significant attention, and indeed some criticism, over the uses of European data-protection laws and how such laws can be balanced with the public interest. The delistings are the most recent example of the use of the “right to be forgotten” which was first recognised by the Court of Justice of the European Union in a 2014 decision in a case taken against Google’s Spanish subsidiary by Spain’s data-protection agency AEPD and a Spanish citizen.

The right requires search-engine operators to consider applications from individuals identified by items returned in the engine’s search results to have those items ‘delisted.’ On receiving this kind of request the operators are then obliged to delist items that “appear to be inadequate, irrelevant or no longer relevant or excessive in the light of the time that had elapsed”. But the court in the Spanish case emphasised that items should not be delisted where there is a “preponderant interest of the general public in having, on account of its inclusion in the list of results, access to the information in question”.

The delistings at issue in the Quinn case appear to have followed from a request by a member of the Quinn family to Google to remove news items in which his name appeared, but the subsequently delisted articles also include news items associated with long-running litigation between the Quinn family and Irish Bank Resolution Corporation. The question posed by many has thus been whether the right to be forgotten should permit items such as this to be delisted given the public interest in the information contained in the articles which pertained to ongoing litigation and matters of national economic concern.

Private company

The more fundamental issue which these delistings have drawn attention to, however, is the power of a private company to decide when, and whether, an individual’s right to be forgotten can be enforced. At present, right-to-be-forgotten claims (such as those made in the Quinn case) are considered and decided on by employees of the search-engine operators to whom the request is made. While these search engines publish annual transparency reports which include statistics about how many right-to-be-forgotten applications are made – and how many are successful – these reports do not detail the content of the decisions in right-to-be-forgotten cases – or the factors used in reaching those decisions. The result is that private companies have the power not only to delist articles but to do so based on their own assessment of whether a legitimate right-to-be-forgotten claim exists, what public interest, if any, would require the item to continue appearing in search results, and how to balance any public interest with the data-protection rights of the requesting party.

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This is a cause of concern for two primary reasons. First because in general the balance to be struck between competing fundamental interests, or the limitations to be placed on fundamental rights (data protection in this case) is a matter for publicly accountable regulatory or judicial bodies and not privately directed institutions. Circumstances may, of course, provide that a power to conduct such balancing is delegated to a private, or quasi-public agency but such agencies nevertheless remain subject to public oversight and regulatory limitations laid down in statute.

Guidelines

While search-engine operators should be guided by the article 29 working guidelines on the implementation of the Google Spain decision as well as the provisions of European and national law there is, in effect, little to no information as to how such guidelines and legal provisions are used by these private companies to make their decisions.

Thus, while unsuccessful claims in respect of the right to be forgotten can be appealed to the Data Protection Commission (and subsequently to the courts) the vast majority of decisions in right-to-be-forgotten cases will be taken by employees of a private company, beyond the scrutiny of the public.

The result, in this case, is that it is not possible to know why the Quinn family was successful in securing the removal of links to news items concerning them. It could equally be because the search-engine operator considered the stories to be inadequate, irrelevant or no longer relevant, or because they considered there was insufficient public interest in maintaining access to those stories.

The point, however, is not whether or not such a public interest does exist – but why it is up to a private company to decide whether it does or does not.

Róisín Costello is assistant professor at the School of Law and Government at DCU