What is the right to be forgotten?
The question is how society should deal with the new development that, thanks to databases and search engines, events from an individual's life that occurred long ago can be retrieved at any time and without great effort. The right to be forgotten is intended to limit this.
How did the verdict come about?
It is about Google, the daily newspaper La Vanguardia in Barcelona and about the Spaniard Mario Costeja. The latter, a court expert for manuscripts in Barcelona by profession, apparently came across an official notice with his name six years ago while Googling his ego, which had appeared in the editions of January 19 and March 9, 1998. It was about the forced auction of a 90-square-meter plot of land in the Catalan town of Sant Feliu de Llobregat that belonged to Costeja and his then-wife. Because La Vanguardia had digitized all the issues since its first publication in 1881 in 2008 and made them freely accessible on the Internet, ten years later this note appeared at the top of the search results list on Google, which Costeja found so disturbing that he went to several instances to try to ban La Vanguradia and Google from publishing it. When the case ended up at the Audiencia Nacional, one of Spain's highest courts, in 2010, the judges there were at a loss and consulted the European Court of Justice (ECJ) with a "preliminary ruling. The ruling, which is binding on the courts of the EU member states, has been available since May 13 of this year.
What exactly is the ruling about?
This is about balancing the right to privacy and data protection in European law with the legitimate interest of the public to have unhindered access to such information. (Both civil rights are included in the European Convention on Human Rights). It distinguishes between public and private persons, and it is concerned with search engines in general, not just Google, but anyone who processes personal data. Namely, the court affirms that there is a "right to be forgotten" for private individuals on the Internet. In general, according to the court, the protected rights of the data subject outweigh the interest of Internet users to be freely informed and the economic interests of search engine operators.
What is remarkable about the verdict?
The 13-member panel of judges, who with an average age of 61.4 can hardly be classified as Internet-savvy, thus set unexpectedly clear accents. A year earlier, the Advocate General, Niilo Jääskinen of Finland, had submitted his (non-binding) motions to the court and reached completely different conclusions on various aspects. He mentioned several times that the current law, the EU Directive 95/46/EC, dates from the pre-Internet era (it is to be replaced by a new "General Data Protection Regulation" later this year). Because Google processes personal data, but does so by means of computer code rather than personally, the search engine cannot be held responsible for the processing. Unlike the court, which did not address freedom of expression, Jääskinen took issue with this, and he advised against leaving it to search engine providers to balance conflicting interests in individual cases. And he predicted: "There would be an interference with the freedom of expression of the website author, who would be left without adequate legal protection in such a case, since an unregulated procedure for reporting and removal would be a private law matter between the person concerned and the search engine service provider. This would amount to censorship of the content published by the author by a private party."
How was the verdict received?
American and British commentators in particular see the ruling as a dangerous step toward censorship. Americans have traditionally placed the right to free speech higher than the protection of personal data. The fact that Europe, of all places, with its past, is moving in this direction was met with incomprehension in many quarters, and one even sneered that the big winners of the ruling are French ministers who want to forget the name of their last mistress. A committee of the British House of Lords sharply criticized the ruling in an expert opinion, concluding that it was "unworkable" and "misguided in its basic assumptions.
How will the ruling be implemented?
In mid-July, Google announced that it had received 91,000 deletion requests so far, demanding the removal of 328,000 links. (A document is not removed in general, but only if the respective name belongs to the search terms). About half of the deletion requests have been granted, and additional information has been requested in another 15 percent. There are voices that think Google is acting too generously and thus wants to address the difficult implementation of the ruling. There is also criticism of the fact that Google, as a private company, and not an official or judicial body, examines and decides on the requests. Meanwhile, European data protectionists criticize the fact that Google informs the respective website operators about the deletion and only carries it out on Google pages in Europe (and not worldwide). The data protection authorities are working to regulate the removal of search results in more detail in a guideline. Google, for its part, has set up an expert advisory board to discuss the implementation of the ruling in public meetings in various European capitals. Other Internet players, such as Microsoft with its Bing search engine and Yahoo, are also in the process of aligning themselves with the new case law in order to also process deletion requests in the future.
What is this to do with us in Switzerland, since European judgments are not legally valid in Switzerland?
Although the ruling has no legal force in Switzerland, Google has decided to proceed in the same way in all EU and EFTA countries. Thus, by July, 1645 Swiss nationals had submitted requests to Google for the deletion of 7085 websites.
What is the legal situation in our country?
Privacy is held in high regard here (keyword: banking secrecy), and when it comes to the right to be forgotten, one can easily get the impression that this is a Swiss invention due to the extensive and decades-old practice of the Federal Supreme Court and the corresponding laws. It is therefore not surprising that the federal data protection expert Hanspeter Thür predicts in view of the ECJ ruling that Swiss jurisdiction would probably react similarly in a comparable case. For Swiss publishers, for example, a Lausanne ruling from 1996 is groundbreaking, in which even truthful reporting about a past prison sentence was classified as violating personal rights and therefore not permissible.
To what extent does the right to be forgotten affect Swiss media companies?
Requests for deletion, as they are now arriving in droves at Google as a result of the judge's ruling, are a long-established right in this country, albeit one that is (so far) rarely used. A survey among the publishing houses Tamedia, NZZ and Ringier gives the following picture: According to company spokesman Christoph Zimmer, Tamedia receives around two dozen deletion and anonymization requests per month in the publishing sector (which also includes Tilllate.com). But only in "a handful of cases per year" is anonymization justified on the basis of the right to be forgotten. According to Secretary General Hanspeter Kellermüller, the NZZ media group receives 10 to 15 requests per year in connection with the right to be forgotten in the publishing sector (i.e., not including Moneyhouse, for example) and another 20 or so requests relating to other violations of personality. According to Chief Communications Officer Edi Estermann, Ringier moves in the same order of magnitude: "We are talking about an average of less than 20 requests of this kind per year across all titles. Most of them concern the titles of the Blick Group." At Ringier, the deletion then usually also affects the Swiss media database SMD. Meanwhile, Tamedia Zimmer states that deletion from the SMD only takes place "if we are legally obligated to do so.
Is link deletion becoming the new popular sport?
Although the European ruling has no direct legal significance for Switzerland, Zimmer reports, it has "nevertheless led to a significant increase in requests for deletion and anonymization". Kellermüller, too, reports that the number of requests has increased recently, primarily addressing discoverability on the Internet, and he has observed that such requests are increasingly coming from Germany as well.
How has the Swiss media industry reacted to the ruling so far?
So far, journalists and publishers, as well as the corresponding associations, have remained silent on the ruling of the European Supreme Court, which also consigns journalistic contributions to oblivion. As research by Werbewoche revealed, the effects of the ECJ ruling are being followed and discussed, and opinions are still being formed. The general view is that, since current reporting is not directly affected, there is no conflict with press freedom. The situation is different when it comes to press archives: At the Association of Swiss Media, for example, director Verena Vonarburg emphasizes: "Archives must also be able to be maintained in the Internet age." It is "very important" that the right to be forgotten cannot be claimed when it comes to archives (such as SMD) that are not freely accessible to the public, but which are indispensable for research, background reports, and even the writing of history.
Christoph J. Walther