The European Court will define the online life of an individual which may throw up issues with the US, says Michael Sandys of Jackson & Cantor.
The ruling handed down stated that an individual can demand that “irrelevant or outdated” information be deleted from search results - and it has sparked a flurry of requests from individuals that Google do just that. The major difficulty in this case is the fundamental difference between the US, where freedom of speech is a paramount concern in law, and Europe, where we place more importance on the protection of individual privacy and reputational rights.
Reports in the media confirm that more than 50 per cent of applications from the UK since the ruling have come from convicted criminals certainly makes for good headlines. However it masks the reality that sometimes defamatory articles and postings which have been ruled on by the courts can still be discovered online, perpetuating the damage to an individual’s reputation long after the courts have ruled.
I personally feel that Google does need to do more to protect and manage people’s data but the European Court must ensure that any law it drafts around this also preserves freedom of speech and does not re-write history or distort the facts that existed at the time of publication. It is a balance between privacy and freedom which will be difficult to achieve.
It is likely the Google ruling will find its way into European law in one or two years. Lawmakers will need to use that period to find a way to allow some information to be removed in a timely fashion while at the same time not allowing history to be rewritten.
If an individual goes to court about an article or piece of data which is found to be defamatory or inaccurate then there are already levers in place for Google to quickly remove it from the search results.
I have made requests on behalf of clients a number of times however for the removal of content which defames them. Sometimes it is dealt with well but other times the process can be slow and cumbersome.
This is the problem that Google must address. It often does not react swiftly enough to requests for data removal and that can have a significant impact on people about whom factually incorrect or defamatory information is published.
At the same time we must protect the right to freedom of speech. Any new law drafted must not be used to restrict the rights right people have to express themselves and for the media to challenge wrongdoing.
Freedom of expression is a critical part of the free, democratic society in which we live and the European Court has to be wary that by protecting people from defamation it does not gag critical voices.
It has also suggested that the new law could insist that something termed ‘irrelevant information’ or “out of date” could be deleted on request or automatically after five years. However, what should be the criteria for this? Moreover, what is deemed irrelevant now may not be in ten years from now.
To adopt such draconian position in drafting new legislation would be easy. However the price the European Court might pay for such action could be severe. Civil liberties groups would lobby against the changes and public opinion across the Atlantic may put pressure on companies to scale back their operations in Europe.
It is also worth considering that if something is not defamatory or inaccurate why should it be removed? Would an application to eradicate information about the Nazi atrocities of World War Two have to be implemented? Would the police be able to request that details about mishandled cases such as those involving Jimmy Savile be removed?
There is a lot of information which some people would rather see forgotten and removed but which should not be for many reasons. This is a tricky piece of legislation to get right and it is not an easy task.
The European Court is effectively going to attempt to redefine our online lives and how we use the internet in the most significant way since the creation of the world wide web. We have very quickly become reliant on the internet to record and manage our everyday lives and as such it is going to take some time and thought to get this right.