Letter to Article 29 Working Party on the Right to be Forgotten
21 Jul 2014

Isabelle Falque-Pierrotin
Chair, Article 29 Working Party
DG Justice

Dear Ms Falque-Pierrotin,

We are writing to express our deep concern over the effects of the so-called Right to be Forgotten ruling, issued by the Court of Justice of the European Union (ECJ) on May 13, 2014.

Since the ruling was issued, Index on Censorship, an international freedom of expression charity, has consistently and repeatedly expressed reservations about the failure of the judgement to include recommendations for oversight mechanisms and provisions that would ensure freedom of expression and information rights, as well as obligations, are balanced with privacy rights. We are disturbed both by the loose wording of the ruling and by recent comments from European information commissioners that appear to suggest that authorities are making a default presumption that – in the majority of cases – privacy rights trump those of free expression and right to information.

Index is concerned that without the rapid introduction of uniform, Europe-wide guidelines from regulators on the implementation of, and oversight process for, all search engines implementing Right to be Forgotten, the system will lead to swathes of information that should be publicly available being hidden from sight. This includes not just serious journalism but also information about, for example, individuals who use comment lines below articles as a form of harassment.

Index calls on Article 29 as a matter of urgency to:
• issue detailed guidance on the types of information that can be considered “irrelevant” by search engines. Simply asking search engines to have a due regard to information that is “in the public interest” is insufficient guidance;
• detail an appropriate mechanism of oversight to ensure that it is possible for data protection or other relevant national and European authorities to examine any search engines’ decision on a Right to be Forgotten request;
• include an appeals mechanism that allows publishers of content who have had links removed to be able to challenge that decision. Index understands the need to balance privacy rights with rights to information and freedom of expression rights. However, we are concerned that the recent actions of the ECJ and data protection authorities has failed to sufficiently taken into account the latter, and we would urge greater consultation with civil society groups on the implementation of this ruling and in the development of future data protection guidelines to ensure that that these rights are protected.

Yours faithfully,

Jodie Ginsberg
CEO, Index on Censorship

Copies to: European information commissioners

Letters from the Society of Editors:

Letter to Isabelle Falque-Pierrotin on the Right to be Forgotten

Letter to the Prime Minister David Cameron on the Right to be Forgotten

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