INFORMATION TECHNOLOGY LAW Best Solution for Business Law Assignment Help & Writing Problems in Australia
Table of Contents INTRODUCTION..........................................................................................................................1 Background of the Case.................................................................................................... 1 Judgement...............................................................................................................................2 Analysis and Implications of the decision...................................................................3 Brief Implications of the decision...................................................................................7 CONCLUSION.............................................................................................................................. 8 REFERENCES............................................................................................................................ 10
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INTRODUCTION The newly emerged 'Right to be Forgotten' has attracted immense controversy and uproar on an international platform, especially in connection to European Union. This jurisprudential development was undertaken in May, 2014 through the judgement of Court of Justice in the case of Google Spain
SL and Google Inc v. Angencia Espanola de Proteccion de Datos (AEPD) and Mario Costeja Gonzalez (2014). The court upheld the validity of a new right which entitles every person to have their personal data forgotten from internet. The application of this right is sought in EU and in pursuance to the same every person in the region has the right to put forward a request to the search engines, to have their data deleted from the digital memory. The impact of this judgement can be felt across the world and has made a significant impact on the manner in which internet is operated.1 A specific impact of this decision is made on the extent to which any person can access data on internet in respect to specific individuals. It is important to note that the business impact of this decision is not only detrimental for Google alone, the broad construction of the decision has the capability to make other internet operators liable for breach of privacy. In order to gain a better understanding on the issue the instant study seeks to analyze the judicial pronouncement of the 2014 case and illustrate the impacts which it has on all the search engine, in addition to Google. Background of the Case This case involved a Spanish national who approached Spanish Data Protection Agency (SDPA) to remove an internet article published by a newspaper. The compliant was made against Google, as it was alleged by him that on searching the name of the applicant a particular article from 1998 is shown in the results. It was further alleged that the article revealed certain information in respect to an auction which was conducted to recover
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certain forms of debt against him. In pursuance to the complaint of applicant, SDPA directed Google Inc. and Google Spain to conceal the concerned personal data or remove it from internet. In response to the same a legal proceeding was instituted by Google before the National High Court in Spain. The matter was referred to European Court of Justice (ECJ).2 The specific legal issues which were made fro referral were:  Whether the applicant was entitled to directly approach Google for removal of the concerned personal data, which has been published by a third party;  Whether Right to object or erasure, given under the European Union Directive 95/46/EC entitles the data subject to request removal of such personal data on the ground of right to privacy, even after passage of a considerable time or even if the data was uploaded lawfully at that point in time. The Directive provides for processing of personal data as well as on free movement of such data. Judgement Considering the European Union Directive 95/46/EC it was stated by ECJ that this regulation is responsible for processing of data as well as grant rights to such people to raise objection on processing of any form of personal data on grounds which are reasonable and justifiable in nature. In accordance to this provision the data subject is entitled to complaint the same to the concerned person who is responsible for processing the data. It was found by the court that the activities being carried out by Google are well within the definition of processing the personal data as suggested in the Directive. In light of these deductions Google Inc. and Google Spain shall be considered well within the scope of the Directive.3 In the event the request is
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not fulfilled at this level the data subject may approach the judiciary or other supervisory authorities. The court while considering the facts of the case in hand stated that the nature of personal data involved in the present case has the potential to fundamentally impact their respective right of privacy. Considering the nature of interference which the applicant is being subject to it can be stated that publication of such a personal data cannot be solely justified for the economic interests which the concerned processors of information may have in the matter. The respective search engine was considered to be under obligation to process the data completely in accordance to the Directive 95/46/EC. In furtherance to the same the court while interpreting the right to object under the Directive as inclusive of the 'right of erasure or to be forgotten' in connection to the personal data which is published on internet.4 In light of this interpretation every person is entitled to request the search engine operators to either erase the data which is prejudicial in nature or allow it to be forgotten after lapse of certain time period. Further, the court also considered Article 12(b) of the same Directive which in essence empowers the data subjects to require the operators to erase or block certain personal data, processing of which is not in accordance to the Directive 95/46/EC. The incompatibility of personal data could be in terms of inaccuracy, inadequacy, irrelevancy and exaggeration in respect to the purpose of publication of the concerned data.5 Thus, in conclusion it was stated by the court that the right of data subject in relation to prejudicial personal data shall have an overriding effect on the economic interests which the operators may have in such data. Moreover, the court also indicated towards an exceptional situation wherein this right shall not be made available to the data subject, i.e. in the event the data subject is a public figure and publishing of such a data is in preponderant interest of
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public. Since the facts of the instant case in hand does not fall within the periphery of the situation of exception, the concerned search engine operator was directed to remove the concerned personal data from the internet. Analysis and Implications of the decision The judgement pronounced by court in this case has led to eruption of numerous legal issues, which are from the perspective of both the public in general as well as search engine operators responsible for processing of the data on internet. In concern to the human rights of an individual, the court has considered Article 7 and 8 of the Charter, in pursuance to which it has been stated the operators are under an obligation to strike a balance between the interests of public to access the data and the interests of data subjects under Article 7 and 8 of the Charter. The two articles provides for right to private life as well as protection of personal data. However, it can stated that the judgement has failed to establish the degree to which the right to be forgotten can be exercised by the data subject. Moreover, this decision ought to have an implication on the other fundamental rights, specifically in relation to freedom of expression. Moreover, it shall also have a detrimental impact on the obligations which the other internet operators are required to exercise, beyond Google. After ascertaining the resolution to the preliminary issues the court considered the balancing test which shall be assessed for application of the balancing test. It was observed by the court that the processors are permitted to process information or data which is personal in nature which in effect serves to the economic interests of the said controllers or other concerned parties. However, the said permission is not granted in the instances wherein the overriding interests of data subject in terms of their fundamental rights of privacy rights are being impacted. In accordance to the opinion of the court it is essential to consider the seriousness of the interference which is being made by the alleged prejudicial data in the rights of the data subject. Moreover, it is also Best Solution for Business Law Assignment Help & Writing Problems in Australia
important to consider the right of public to access requisite data or information on the internet in respect to specific persons. In pursuance to the same the preponderant interest of accessing the information shall be allowed and the right to be forgotten of the data subject shall not be given priority.6 It has also been stated by the court that considering the supremacy and importance of right to privacy of any data subject, the objection shall readily be approved even if it is found that such a data is not prejudicial in any form. Apart from breach of the right to privacy, a data subject has been entitled to raise an objection even if the data or information is not adequate in relation to which it has been used, or is completely irrelevant to the context or even if it has become irrelevant over the course of time. In addition, even in the cases where excessive or exaggerated information or data has been published in relation to the purpose, then also the search engines shall be required to remove the concerned data or links from the digital platform. However, the decision of the court has been facing immense criticism from all the aspects of the legal fraternity. Much of the criticism is explicitly based on legal arguments, in accordance to which the decision of the court in relation to granting of right to erasure under the Directive and other wise is completely outside the periphery of legality attached with the issue. Firstly, it is being argued that the decision of the court to consider Google as a data controller under the Directive is completely extraneous, and moreover application of the balancing test was wrong on grounds of ignoring basic legal principles as well as rights of the concerned parties. It can be observed that decision of the court has accorded unqualified powers to private entities, whop are now empowered to regulate or censor the content to be published on internet. The court has refrained from providing any form of guidance which could regulate the powers of these private data subjects. Therefore, in pursuance to the decision of court unprecedented powers have been given to the data subject. However, there Best Solution for Business Law Assignment Help & Writing Problems in Australia
has been another opinion in response to this criticism, that the decision of court in presence of the concerned circumstances was a reasonable interpretation of various rights which are available to all the parties involved in the matter. It has also been highlighted by some that the critics shall direct their focus on shaping the debate for introduction of a new regulatory system which is capable to govern the nuances of modern technology and requirement of privacy protection. The court while deciding the matter in hand, also made a very broad interpretation of the definition of data controllers under the Directive to apply the right to privacy and right to object against personal data. The British House of Lords while reviewing the decision of court specifically lamented that the approach and interpretation of data controller was too wide and has now the capacity to include all any of the entities which operate to aggregate the any form of data which is available publicly. Thus, in effect to this misinterpretation the decision of the court is applicable on all the such entities and institute a suit against them in the event of allegation of right to privacy or publishing of prejudicial data. Moreover, it was opined by the court that the overall interpretation of the Directive by the court in the present matter shall have been more stringent in nature. It has the capacity to produce results which are completely absurd in nature and shall have an effect of even including the users of these search engines, if assessed in a logical manner. The
court
while
pursuing
the
balance
test
in
connection
to
interpretation of the Directive has given priority to the right to privacy over almost all the other rights which may be involved in respect to all the parties which are under consideration. In result of this prioritization of the privacy rights it is argued that the court has developed an exclusive super human right of data erasure, irrespective of the fact that all the human rights available under law are not bound by any form of hierarchical relationship.7 Best Solution for Business Law Assignment Help & Writing Problems in Australia
The focus of the court was entirely on granting of right to privacy and in the process they completely ignored the application and importance of other rights which may be available to parties. For instance the freedom of information and expression which is one of the fundamental rights available to the public or other entities. The interpretation of the court on the other hand is entirely based on the principle and values underlying the wording of the Directive and hence, could not be considered inappropriate. On analysing the description of the manner in which internet search operates, it can be stated that both legal as well as intuitive description of 'data controller and processor' is mirrored in the precise manner.8 Opinion of the court is strictly based on the processes which are undertaken by Google or any such search engine in processing or controlling all the data which is displayed on search. Moreover, in response to the criticism of the balancing test it has been stated that the Directive itself provides for prioritization of rights and the court has acted completely in accordance to the text of the Directive. After analysing the wordings of the Directive, it has been ascertained that it acknowledges the importance of free flow of data to be accessed by the public, but at the same it is also clear that this right is subordinate to the right of protection of fundamental rights, especially in terms of the right to privacy. On the basis of this conclusion it can be stated that the Directive itself provides for a hierarchical relationship between the Human rights and the approach of court was completely in accordance to the Directive and hence, cannot be considered as erroneous in nature. Moreover, the interpretation style of the court was completely textbased and reasonable in nature, and also a reflection of the underlying principle and values of the Directive. The decision of court in respect to granting of an unqualified right to be forgotten to private entities may also have consequences which prove to be detrimental in effect and has some real world impacts. In pursuance to the Best Solution for Business Law Assignment Help & Writing Problems in Australia
opinion extra powers have been made available for the entities as well as Google in connection to censoring the publicly available data and information, without providing any form of guidance or instructions.9 The process has been made extremely easy and simple for the entities to directly approach the operators of search engines and impeding access to certain set of facts and information they longer wish to be available for others. Though the court has provided for certain situations on the basis of which only the search engines shall allow the request of data subjects, but these grounds are wide enough to include almost reason which these entities could think of. Moreover, the fact that these requests have been allowed to be made within the personal or private capacities of the concerned parties, it completely eliminates the requirement of public accountability as well as scrutiny. In can be inferred from this that the entire process of exercise of right to be forgotten shall be away aloof of any form of scrutiny and authentication. This in turn gives unreasonable powers to both Google (other search engines) as well as the data subjects to take decisions on a discretionary basis and take undue advantages.10 Therefore, the decision has left a large scope for Google to exercise their discretion and undertake decisions which are not subject to any form of guidance or qualification. Moreover, this in effect provides insufficient protection to the interests of public in relation to the freedom of expression as well as access to information. It is important to note that the approach of the court in evolving judgement of the case is deeply tied to the text and values of the Directive. The Directive provides a clear indication of prioritization of Right to Privacy over any other human rights, which forms basis of the decision to empower private entities to exercise effective control over the processing and publication of any form of personal data which is available online. Moreover, the decision to grant absolute power to Google in determining the
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information which is allowed to be displayed in the search results is derived from command of the Directive for the Controller. The command specifically requires the controller to be assured of the quality of data being published. Moreover, the Directive provides a very broad and vague language in relation to implementation of various requirements, and hence, the court also did not take any initiative or played an active role in developing guidance notes for Google or any other search engine.11 However, the court here has left scope for these search engines and Google to develop their own parameters for entertaining these form of requests. Brief Implications of the decision The implications of upholding the Right to be Forgotten can be briefly summed up in the following manner:  The application of this right is primarily within the jurisdiction of European Union, which implies that all the entities or companies which are working within this region but also having majority of their operations outside Europe shall also be made liable to adhere to the same. Moreover, all the entities which are now covered within the broad definition of 'data controller' shall be required re structure their operations in accordance to the same.  This decision shall also have an impact on the companies from other jurisdictions which intend to target the EU market. The rationale behind the same is that though the company is not within the jurisdiction, the internet search findings shall be subject to the decision and hence, shall be able to give restricted results.12 In turn this shall increase the difficulty of these companies to target consumers from this region.
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A large number of companies primarily operating online shall be required to review all the policies and assure the manner in which personal data of different entities is being used. Moreover, the decision has been made applicable on all the entities, notwithstanding any form of licenses, thereby covering all the alleged 'data controllers' to comply with the ruling of the court in relation to Right to be forgotten.13 Google has taken initiatives for establishing a forum in which people can make request to remove data and information that they found to be private and does not want it to be on Internet. Other than Google some other search engines such as Yahoo and Bing also have taken steps for this and they have made plans for removal of the content from the Internet.
CONCLUSION European court have ruled in the case that EU citizens have been provided with the “Right to be forgotten”. According to this they have been provided authority for requesting to remove any data from the internet sources. Any pages that are deemed to be private can be requested to be removed.
It has been ruled out by the European court of justice that
European citizen has been provided with the right to request for removing links from personal search engines. If these search engines are asked to remove content which individuals found private than requests can be made under “ Right to forgotten”. It has declined the economic interest of the publishers and has given overriding power to the public interest to ensure access to information. Data protection has been made easier with this and privacy of data can be maintained by making use of this. In consequence to this decision it can be stated that any personal data which has been uploaded many years back, shall also be entitled to be removed in pursuance to the Right to be Forgotten. In pursuance to the same it has been
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stated that the status of the personal data shall be assessed in accordance to the currently prevailing facts and circumstances. Therefore, any data which was lawful or relevant when uploaded on internet shall be liable to be removed if the data subject is of the opinion that it is not longer relevant or accurate for the purpose of actually uploading it. Apart from breach of the right to privacy, a data subject has been entitled to raise an objection even if the data or information is not adequate in relation to which it has been used, or is completely irrelevant to the context or even if it has become irrelevant over the course of time. The application of this right is sought in EU and in pursuance to the same every person in the region has the right to put forward a request to the search engines, to have their data deleted from the digital memory. Thus, Right to be Forgotten or Erasure has been granted to all the private entities to be exercised against the data controllers or the operators of the search engine.
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REFERENCES ● McNealy, Jasmine E. "The emerging conflict between newsworthiness and the right to be forgotten." (2012). ● Erik Werfel, J. D., CIPPUS IGP, and CEDS CISSP. "What Organizations Must Know About the'Right to be Forgotten'." Information Management 50.2 (2016): 30. ● Dumas, Agnès, et al. "The right to be forgotten: a change in access to insurance
and
loans
after
childhood
cancer?."
Journal of Cancer
Survivorship (2017): 1-7. ● Kerr, Julia. "What Is a Search Engine: The Simple Question the Court of Justice of the European Union Forgot to Ask and What It Means for the Future of the Right to Be Forgotten." Chi. J. Int'l L. 17 (2016): 217. ● Hovav, Anat. "Responsible Innovation: The Role of MIS in the" Right to be Forgotten" Discourse." (2016). ● Xue, Minhui, et al. "The Right to be Forgotten in the Media: A Data-Driven Study." Proceedings on Privacy Enhancing Technologies 2016.4 (2016): 389-402. ● Goldenberg, David. "The Right to Abortion: Expansion of the Right to Privacy Through the Fourteenth Amendment." The Catholic Lawyer 19.1 (2017): 11. ● Macenaite, Milda. "From universal towards child-specific protection of the right to privacy online: Dilemmas in the EU General Data Protection Regulation." New Media & Society (2017): 1461444816686327. ● Schulhofer, Stephen J. "An international right to privacy? Be careful what you wish for." International Journal of Constitutional Law 14.1 (2016): 238-261.
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