«Right to be forgotten» and freedom of speech: how to strike a balance on the Internet
Nowadays, Internet search engines and social networks contain vast amounts of information, some of which people would like to keep private, ranging from news about the bankruptcy of a particular businessman to embarrassing photos from the past. This information can harm individuals and violate their right to privacy, widely recognized in both international and national law. In recent years, the problem has been widely covered by mass media, moreover, it has also come to the attention of international and regional organizations. For example, in 2012 the Committee of Ministers of the Council of Europe adopted a Recommendation on Search Engines, in which it noted that “search engines can become a threat to human rights and fundamental freedoms.
It is hardly possible to remove information from the Internet irretrievably. This fact reasonably raises concerns among users who are trying to regain control over their personal information: not many people would want a potential employer to see “those” photos from a rowdy student party.
In response to such a need, Article 17 of the European Union General Data Protection Regulation (hereinafter GDPR) enshrined the “right to be forgotten”. This article states that a data subject has the right to request the controller to delete, without undue delay, personal data relating to him or her, and the controller is obliged to delete their personal data without delay if at least one of the grounds listed in the article applies to the situation.
These would seem to be golden times: anyone can demand his or her information that is somehow inconsistent with his or her image to be removed from the network. If no one knows about the mistakes of the past, there is no need for a time machine!
But it’s not that easy. Article 17(3) of the GDPR contains exceptions to the “right to be forgotten”. They include the exercise of the right to freedom of expression and freedom of information; compliance with a legal duty; public health interest; archiving in the public interest, for scientific or historical research purposes or for statistical purposes; and making, exercising or contesting legal claims and lawsuits. The exceptions allow a balance to be struck between the rights of different members of society: for one person, it is an unpleasant background fact they want to hide; for another, it makes excellent material for an article on contemporary morals. Whose interests are privileged? That’s a good question!
The Court of Justice of the European Union (“CJEU”) in the Google Spain vs AEPD decision also recognised that the “right to be forgotten” is not absolute and must be balanced against other rights and interests, in particular the interests of the general public in relation to access to certain information. This particular case sharply raised the issue of balancing the “right to be forgotten” and freedom of expression. The CJEU ruled that since the data subject may request this information to be no longer available to the general public (since, in accordance with Articles 7 and 8 of the EU Charter of Human Rights, he has the right to respect for private and family life and the protection of personal data), these rights would outweigh not only the economic interest of the operator of the search engine, but also the interest of the general public in gaining access to this information in searches related to the name of the data subject. Nevertheless, interference with these rights may be justified by the overriding interest of the general public.
Thus, it was necessary to develop a certain algorithm to strike a balance between the “right to be forgotten” and freedom of speech. And since this issue has repeatedly become the subject of consideration of the European Court of Human Rights (hereinafter – the ECHR), on the basis of the established practice, the following criteria can be distinguished:
- contributing to a debate on an issue of public interest – for example, in Oprea vs Romania case, the ECHR found that allegations of corruption among university professors are of great public interest as they relate to important issues that the public, in particular voters, has a legitimate right to know;
- the social status of a person – in Petrina vs Romania case, the ECHR noted that the privacy of politicians is much less protected as they voluntarily put themselves in the spotlight and therefore they have to put up with higher criticism;
- truthfulness of information – false information does not receive the same degree of protection as truthful information. For example, in Pedersen and Baadsgaard vs Denmark case, a television program alleged that a police officer had concealed a report of evidence, but no evidence was provided to support this claim. As a result, the ECHR ruled that the restriction of freedom of speech in this context was lawful;
- the form of the information and the consequences of accessing it – in Fuchsmann vs Germany case, the article was published outside Germany and was available on its territory solely as a result of a search using an online search engine. The ECHR considered that the consequences of the influence of this article in Germany were limited and refused to apply the “right to be forgotten”.
Hence, the “right to be forgotten” is not an absolute right and there is a risk that freedom of expression in a particular case will prevail over it. However, this is not the only limitation. For example, in Google vs CNIL case in 2019 the CJEU ruled that search engines are not obliged to exclude websites worldwide from search results because this action could disproportionately harm internet users’ rights to access information. As a general rule, they could be restricted to the EU territory.
Thus, the ‘right to be forgotten’ must be balanced against other rights. Although the exceptions are listed in Article 17 of the GDPR, they do not give a clear picture of its scope. However, it should be noted that the need to balance the ‘right to be forgotten’ with freedom of expression is what raises the most questions, since it is given high priority in Europe. Although the CJEU and ECHR have developed certain criteria that can help resolve this issue, they have not formed a separate test and the list of criteria may differ from case to case. However, even the courts themselves have repeatedly pointed out that the issue of balancing these rights must be dealt with on a case-by-case basis.