The 'right to be forgotten' simply doesn't exist; Despite the recent EU court

ruling, it is not possible for information to be destroyed.

Daily Telegraph (London, England), Jul 31, 2014
Most people have moments in their past that they would prefer not to be in the spotlight. What if,
when you enter your name in Google, the first thing that comes up is a link to an episode that
you would like to be forgotten. Can it be forgotten? If it can, should it be? Should you have a
right to have the link deleted? And based on what procedure?
Those were the questions that the Court of Justice of the European Union had to answer earlier
this year. A Spanish national objected that, when you Googled his name, the first thing you
discovered was that 12 years earlier his property had been subject to proceedings involving debt
recovery. He asked Google to remove the link, and argued that it was obliged to do so under an
EU Directive on Data Protection. That directive applies to the UK, so this is a matter of
importance to us all.
Crucially, in 1995, when the directive was adopted, the World Wide Web was in its infancy.
Google was not even founded until 1998. The directive's wording was aimed at a different
technological era, so the court had to decide whether it could be stretched to cover a situation
that had never been envisaged. In May this year, the judges decided that the wording was indeed
broad enough to give the Spaniard a right to have the link deleted. And the House of Lords EU
Home Affairs sub;committee, which I chair, thought this question important enough to merit a
short inquiry.
I think most people would feel an instinctive sympathy for the claimant's position. The legal
proceedings were long ago, and his debts were satisfied. Why should this episode come up as
soon as his name was entered?
House of Lords committees base their conclusions on evidence. We heard from the Open Rights
Group and the Information Commissioner's Office, from an academic and an independent
consultant, from solicitors who act for data subjects and for corporations, from Google, and from
Simon Hughes, the justice minister.
The first thing that became clear to us was that there is no such thing as a "right to be forgotten".
Data cannot, to use the court's phrase, be "consigned to oblivion". In this case, it remained in
newspaper archives and in court records. In Britain it would be more difficult to find once the
link had been removed from google.co.uk – but anyone with access to google.com
would find it.
And of course Google, though by a long way the largest search engine in Europe in terms of
market share, is far from the only one. In practice, the only right there could be was a right for
data to be less easily accessible.

This led to the crucial question: should the subject of the data be able to require a search engine
to remove a link to his name, even though the information disclosed was true and published
lawfully? Yes, was the judges' answer.
Maybe in law they were right, but this is where interpreting a 20 year old directive legal theory
collides with the practicalities of the real world. A judgment that cannot in practice be complied
with brings the law into disrepute. In the 24 hours after Google published a request form, it
received 12,000 requests; in the first four days, 40,000; in the first month, 70,000. Each of these
has to be considered to see if the data is "inadequate, irrelevant or excessive".
Who decides what is "irrelevant"? Voters have a right to know more about the background of
those standing for public office. A past offence which, for most people, might no longer be
relevant, may be highly relevant in the case of a doctor or teacher. The court's answer was that a
link should not be removed where there are "particular reasons, such as the role played by the
data subject in public life". A company the size of Google can cope with the volume of requests
it receives, but it cannot be right to leave it to search engines to evaluate requests against such
impossibly vague criteria. The Lords committee thought this was simply unworkable.
So what can be done to remedy the situation?
Fortunately, EU legislators have for the past two years been considering a new data protection
regulation that will take the place of the directive. The first draft from the Commission included
a "right to be forgotten", but the UK Government, and governments of other member states, have
been arguing that it should come out. We have given the Government our backing, and told it to
go on arguing the case. That way we will end up with a law that reflects the reality of global
access to personal information, and does not pretend to give the subjects of data a right which, in
reality, does not exist.