15 April 2015Jurisdiction reportsMichiel Rijsdijk

The right to be forgotten

The result was that in the EU, search engine provider Google had to allow people to ask it to remove search results. Under certain circumstances, Google now has to do so.

This ‘right to be forgotten’ case put two rights in opposition to each other: privacy and information (some of which might be protected by intellectual property). In February, a Dutch preliminary judge ruled in a similar case and had the opportunity to weigh these rights against one another.

Indirectly these decisions affect Google’s right to freely exploit its IP, which in this case is its database through which the search engine provides results. Under the Dutch Database Act, such a database is protected and provides its producer with the right to limit the unauthorised use of it by third parties. The opposite, a means of protection against forced limitation of public access, is not provided. It is imaginable that, under some circumstances, the right for a database producer to freely exploit its database comes into conflict as well.

The right to be forgotten became reality following the CJEU’s ruling in May 2014. This case was about a man (Mario Costeja Gonzalez) whose past came to haunt him. When someone used Google to search for Gonzalez’s name, the search results referred to articles in newspapers about an auction of his property, in 1998, following his financial difficulties. He was of the opinion that, although the content of these newspaper articles was true, it was no longer relevant. The articles were about a situation in 1998, so the search results no longer provided the information the Google user was likely to be looking for.

"The right to information should not easily be limited, for this can be disastrous for free speech, for example."

The CJEU ruled that Google, as the operator of the search engine, was responsible for the way it yields results. After all, it is Google that determines how its engine works and which results (and related advertisements) it displays.

When asked to do so by an individual, Google (or any other search engine operator for that matter) can be required to remove or mask results normally shown by the search engine. An individual can only make such a demand if search results are insufficient, or no longer relevant, or extreme compared to their purpose and the elapsed time (save exceptional circumstances).

In the following six months, there were more than 11,000 requests for the removal of search results in the Netherlands alone. One of these requests was from ‘X’, a partner of professional services firm KPMG. X wanted to have the search results that led to newspaper articles about this dispute removed. Google refused.

The preliminary judge found that Google had rightly refused. This case did not concern grave circumstances, the court ruled, and X “just did not want to be associated with the incident” any more. Moreover, the information provided by the search engine was correct, relevant, not extreme and up to date.

The preliminary judge had to weigh the right to privacy of X and the general right to information.

Of course, not all matters of privacy can be supported. The conflicting right has to be considered. The right to information should not easily be limited, for this can be disastrous for free speech, for example.

Although the owner of a database enjoys certain rights to exploit this IP right, the extent of its exploitation is further governed by other (fundamental) rights relating to the content of its database, such as the right to privacy and the freedom of speech.

Michiel Rijsdijk is a partner at  Arnold + Siedsma. He can be contacted at: mrijsdijk@arnold-siedsma.com

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