UK Battles EU 'Right to Be Forgotten'

Parliament Report Calls Privacy Move 'Unworkable, Unreasonable'
UK Battles EU 'Right to Be Forgotten'
House of Lords member Usha Prashar

A U.K. House of Lords subcommittee has criticized the recent EU Court of Justice "right to be forgotten" ruling as being "unworkable, unreasonable and wrong in principle." The U.K. government also says it plans to fight the measure.

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The House of Lords subcommittee on July 30 issued a report criticizing the controversial May judgment by the Court of Justice of the European Union, which ruled that EU data protection regulations apply to search engine results. Since that ruling, EU information commissioners have been working to translate the right-to-be-forgotten judgment into actionable guidance for Google, Microsoft, Yahoo and other search engine providers, as well as social media sites.

To comply with the ruling, Google has begun allowing European users to ask for the removal from European search results of any links that were "irrelevant," "no longer relevant," "excessive" or "inadequate." Some EU regulators also think the court's ruling should be interpreted so that search engines must remove links in all of their sites worldwide.

But the House of Lords EU Subcommittee on Home Affairs, Health and Education, in a report released July 30, strongly criticizes the CJEU ruling. The panel says the 1995 data protection rules on which the ruling is based are outdated and argues that the forthcoming revision of EU data protection laws should not include any such "right to be forgotten" provisions.

"We believe that the judgment of the court is unworkable for two main reasons," says subcommittee chairwoman Usha Prashar in a statement. "Firstly, it does not take into account the effect the ruling will have on smaller search engines which, unlike Google, are unlikely to have the resources to process the thousands of removal requests they are likely to receive.

"Secondly, we also believe that it is wrong in principle to leave search engines themselves the task of deciding whether to delete information or not, based on vague, ambiguous and unhelpful criteria, and we heard from witnesses how uncomfortable they are with the idea of a commercial company sitting in judgment on issues like that."

Government Contests Ruling

The U.K. government has said it also disagrees with the CJEU ruling. Simon Hughes, minister of state at the U.K. Ministry of Justice, told the subcommittee at a July 9 hearing that the government plans to fight against any such provision being included in the forthcoming revision to the EU data protection regulations.

"The U.K. would not want what is currently in the draft, which is the right to be forgotten, to remain as part of that proposal," he said. "We want it to be removed. We think it is the wrong position. I do not think, both as an individual and a minister, we want the law to develop in the way that is implied by this judgment, which is that you close down access to information in the EU that is open in the rest of the world."

Who Makes Judgments?

As noted by subcommittee chairwoman Prasher, one serious question left unanswered by the CJEU ruling is who would make legal judgments about which types of data are no longer relevant, and which links should be suppressed.

Similarly, at a July 2 hearing, during which the subcommittee heard evidence from a variety of legal and privacy experts, House of Lords member John Sharkey noted that "Google has rejected a lot of the applications made to it to have the links removed ... on the grounds that it is forced to make a judgment."

"That is a real problem," privacy expert Jim Killock, executive director of the Open Rights Group, told the subcommittee. "These companies are increasingly asked to make these judgments. There is pressure on Twitter to remove material that is bullying and harassing. Much of the time, it might need to do that. However, there comes the classic problem whereby it is simply not entitled to do that because the material is, for instance, offensive but not actually illegal."

Right To Erasure

At the July 2 hearing, a variety of legal and privacy experts further touched on the pros and cons of the so-called right to be forgotten. "Parliament's policy is that certain offenses should be forgotten after a while, but Google does not forget," Chris Scott, a partner at London-based law firm Schillings told the subcommittee.

But Gordon Wasserman, a member of the House of Lords who also advises the government on policing and criminal cases, cautioned that the discussion isn't about forgetting, per se. "You have to be very careful about language," he said. "You said that the law says that certain offenses should be forgotten after a time. It does not say that; it simply says that the offense cannot be taken into account or used. Victims will not forget; the person who did it will not forget. So you have to be very careful in the use of terms such as 'forgotten' and so on."

Privacy expert Killock, meanwhile, argued that the European court's judgment centered more on "the right to erasure" than forgetting. "This is not a right to be forgotten; it is more of a right for people to assert that their search results are relevant," he said. "The court's words were that things might be taken down if they are 'inadequate, irrelevant or no longer relevant, or excessive.' It is talking about a very narrow class of problems."

Enforcement Questions

Making a judgment is one thing, but translating it into compliance guidelines is another - and since the court issued its ruling, it's been up to EU countries' data protection commissioners to interpret that judgment.

But the House of Lords subcommittee notes in its report, released July 30, that according to a blog post published by the head of the U.K.'s Information Commissioner's Office, David Smith, he appears to have doubts about whether the right to be forgotten - or right to erasure - can be properly defined and enforced. "Although Mr. Wood said, more than once, that the ICO supported 'the concept behind the right to be forgotten,' his support was so hedged ... that it seemed to us that he was doubtful whether he thought it workable in practice," says the report.

About the Author

Mathew J. Schwartz

Mathew J. Schwartz

Executive Editor, DataBreachToday & Europe, ISMG

Schwartz is an award-winning journalist with two decades of experience in magazines, newspapers and electronic media. He has covered the information security and privacy sector throughout his career. Before joining Information Security Media Group in 2014, where he now serves as the executive editor, DataBreachToday and for European news coverage, Schwartz was the information security beat reporter for InformationWeek and a frequent contributor to DarkReading, among other publications. He lives in Scotland.

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