Recht auf Vergessenwerden - Google nur der Anfang

The recent ruling by the European Court of Justice in which Google were held responsible for the effect of links containing unwelcome information about an individual and were ordered to remove the links has sparked great debate – but this is just the beginning of potential legal issues affecting many Internet companies – and potentially millions of individuals and businesses.

Not just about Google and not just about links

The case against Google was brought under the old 1995 law (Directive 95/46). Right to be Forgotten refers more to the revision of the data laws currently passing through the EU justice system. They of course apply to all those handling data and in this case, making it public.

The bombshells lurking in the detail – reviews sites

Currently, under the existing laws, there is the potential for actions by people and businesses on the grounds of aspects such as out of date and irrelevant content. So for example, a hotel could claim that reviews say over 2 years old on TripAdvisor (of which there are millions) were not relevant or fair and seek their removal. KwikChex already has several businesses asking us to assist with removals of aged material – mostly when they have invested heavily in improvement and feel the old information is creating an unfair perspective.

But there’s something that could have an even greater impact.

The section dealing with the ‘Right to be Forgotten’ does provide quite rightly for the protection of freedom of speech – but there is also a clause that obliges data controllers to ‘restrict’ data and to compel them to verify. Specifically it states:

Instead of erasure, the controller shall restrict processing of personal data where their accuracy is contested by the data subject, for a period enabling the controller to verify the accuracy of the data.

There seems to be great potential for this to be interpreted as an obligation for the Internet company carrying the content to have to verify facts – which could include the content of reviews. That would put huge stress on such sites.

Distortion claims

Even now under the 1995 law, there are references to accuracy, fairness and being kept up to date. This raises the possibility of claims that the current perspective displayed on a website is not accurate, fair or up to date. Many claim that this is the case with reviews websites – that for example, the site may indicate that say, half of the customers of a featured business are dissatisfied. If that could be disproved through an extensive and variable survey, then a valid claim for correction may well exist. Quite how a reviews site would deal with that situation is a huge question.

And defamation laws are also changing

In the UK,the new Defamation Act has already obliged website operators to act in a fast and very specific manner when defamation complaints are received. Whilst KwikChex has seen some levels of compliance from the likes of Google and TripAdvisor when submitting cases on behalf of clients, there is an inevitability of legal action imminently looming which will drag such sites into a much greater legal battle than anything to date.

Lack of diligence in matters concerning consumers and commerce inevitably leads to regulations being imposed

In so many instances and sectors, when the issues and consequences are considered important enough and there is evidence that diligence is inadequate, the authorities step in. The Internet and the information it carries was never going to be immune from this.

Now, we are seeing the possible consequences – legal battles, new laws and investigations and evaluations by various government and judicial authorities, such as the one recently announced in Italy regarding TripAdvisor are proliferating.

There is the possibility of chaos and both the right of consumers to express their opinions and the right to protect reputation could suffer badly amidst such confusion.

Now is the time for all parties to work towards balance, accuracy and fairness. The solutions are there. KwikChex has already covered the question of balance recently – see article – https://www.kwikchex.com/2014/05/online-content-the-battle-for-balance-in-free-speech/

Without such cooperation, what started as an exceptional consumer resource, may well descend into farce and little value.