‘The Right to be Forgotten’ is a topical and contentious issue, with various consultations and debates, such as those noted in The Guardian examining the issue. The Law Society has added its muscle to the debate, hosting a public debate on 15 October 2014 on the subject. The debate was chaired by Peter Wright, managing director of specialist media firm Digital Law UK. On the panel were Jodie Ginsberg, CEO of freedom of expression organization Index on Censorship, Mark Stephens CBE, partner at Howard Kennedy FSI LLP, Jonathan Bamford, head of strategic liaison at the Information Commissioner’s Office and Stewart Room, Partner at Price Waterhouse Coopers Legal LLP.

The Right to be Forgotten, as it has become known, arose as a result of the European Court of Justice’s highly controversial ruling of 13 May 2014 in case C-131/12, the ruling itself can be found here and the Commission has produced a useful factsheet. As members of the panel commented, the judgment itself is quite complicated and not entirely clear. However a key point in the ruling is that the court determined that in certain circumstances individuals have the right to request a search engine remove links that contain information about them.

The debate commenced with Jodie Ginsberg setting out Index on Censorship’s concerns. Ms Ginsberg made the point that as the ruling did not require the information about an individual to be removed, the ruling was not a direct form of censorship. However, making things hard to find by removing search results was, in her view, a form of indirect censorship. Ms Ginsberg mentioned four specific concerns; 1) Lack of clarity in the ruling, 2) lack of transparency in its application by search engines, 3) lack of recourse for publishers and 4) a broader concern about privacy trumping freedom of expression.

Mark Stephens stated that he broadly supported Ms Ginsberg’s views, and added that he was concerned that the judgment was so opaque that it was unclear what the legal position now is. Jonathan Bamford emphasised the importance of finding the correct balance between private and public interests. He made the point that the principles behind the judgment were not alien; they were familiar. A central concern that Mr Bamford raised was that information available about individuals could sometimes be used in an unwarranted way. He made the point that this could undermine things, for example the protection of individuals who had spent convictions and therefore undermine the principle of rehabilitation. Stewart Room said that the judgment was not beyond criticism and could present challenges but he felt that despite this, the decision was broadly correct.

There were a number of comments on these issues raised by participants, and further discussion ensued with attendees particularly concerned about the practicality of enforcing the decision given that there were already numerous exceptions and ‘work arounds’. It was also pointed out that the vast majority of requests by individuals had been directed at Google; smaller search engines were currently far less affected by the ruling. The debate was recorded and should be available as a podcast via the Law Society’s CPD centre in due course, but the ramifications are sure to run and run.

Susan Collins, Centre for Law Society and Popular Culture, Westminster Law School