applicants would be successful. Like in Pichon, Ireland’s interference in the right to freedom of conscience would likely pass the threshold of the triple pronged test. At the point the case comes to the ECHR, abortion will be legal in Ireland, and medical providers will be required to give referrals. Restricting freedom of conscience to ensure that women have reasonable access to healthcare have been confirmed as a legitimate aim, and necessary for a democratic society in the Polish cases. Additionally, the Court approved of the referral system in P. and S. v. Poland. The Court also often looks for a “European Consensus” when dealing with controversial issues. In 2010, the Parliamentary Assembly issued Resolution 1763 on the right to conscientious objection to lawful medical care. Although non-binding, parliamentary resolutions can be very influential in the Court. This resolution held that no individual nor body could be pressured into or discriminated against for refusing to perform or assist in abortions, amongst other controversial medical practices. As such, the Court may decide that there is a European consensus on the allowance of conscientious objection and allow States a narrower margin of appreciation. However, this resolution still maintains that patients must be referred to a non-objecting provider of the procedure. This means that if Ireland didn’t put a referral system in place, the Court may intervene and decide that Ireland is permitting obstacles in accessing reproductive healthcare. Overall, if a case made it to the ECHR, the Court would have to balance the rights and freedoms of the pro-life practitioners and the rights and freedoms of women seeking access to reproductive healthcare. As the practitioners work in the public sphere, and because their failure to act harms the rights of others, their moral and religious beliefs would not be covered by Article 9. Not only would a referral system not infringe on the rights of conscientious objectors, but if there was not such a system in place, Ireland would be violating the European Convention on Human Rights.
4 · The Eagle Gazette Volume 5 Issue 2
“I got n(EU) rules”: a worrying development in the right to be forgotten? BLÁNAID NÍ BHRAONÁIN ALUM
As more and more of our lives are recorded online, each of us leaves behind a growing ‘digital footprint’ of data – for better or worse. The law has often struggled to keep up with technological advances in this new and unfamiliar territory. It is understandable, then, that the EU waded into this online ‘Wild West’ and attempted to lay down the law with broad new principles, such as the protection of personal data and the ‘right to be forgotten’. However, sweeping privacy protections inevitably affect the interests and rights of other individuals, as well as the general public interest in maintaining a society where information is expressed and exchanged freely. A recent decision in the Netherlands highlights this disconnect. In its 2014 decision in Google Spain v González, the Court of Justice of the European Union considered the application of the Data Protection Directive (95/46/EC) to the indexing of websites by internet search engines. The case concerned newspaper articles from 1998 which announced a forced auction of properties in order to recover Mr González’s social security debts; googling his name revealed links to the articles. Advocate General Jääskinen, whose role is to deliver an impartial opinion to the Court, took the view that as Google merely indexes and directs users to third-party sites, it does not fall into the category of a ‘data controller’ under the Directive. Moreover, he noted that Google’s processing of personal data is carried out by the trawling of the internet by ‘Googlebot’ – an entirely automated process which could not have been envisaged at the time the Directive was written. However, the Court disagreed, holding that Google was a data controller and that a data subject had the right to object to the indexing of links about them. The controller must consider the request and balance the subject’s right to privacy against the general right to freedom of expression - the economic interests of the search engine being of lesser significance. While not quite reading a full-blown ‘right to be forgotten’ into the 1995 Directive, the Court opened up a new arena for such claims: it stated that there was no need for a data
