Arbitrator could rule on 'right to be forgotten' cases in Germany

Earlier this month Europe's highest court, the Court of Justice of the EU (CJEU), ruled that search engines can be obliged to remove links to individuals' personal data from their search rankings at those individuals' request, under certain circumstances.

The CJEU said that search engine businesses have a general duty to stop lawfully published content being available to read via their search rankings where individuals seek the deletion of their data from those indexes on privacy grounds. This duty even extends to information that may not be prejudicial to a person’s interests.

However, it said that there would need to be a balancing of the privacy rights with the right of freedom of expression and that therefore, particularly in cases where requests stem from public figures, there may be grounds to refuse to takedown references to their data.

The Interior Ministry in Germany has, though, warned that the balancing of rights may not be appropriately achieved if the search engines rely on computer software to determine which material should be omitted from search rankings and which should not.

"Politicians, prominent figures and other persons who are reported about in public would be able to hide or even delete reports they find unpleasant," a spokesperson for the Ministry said, according to a report by Bloomberg news agency.

The Ministry is therefore considering appointing a court or other arbitrator to rule on the outcome of 'right to be forgotten' cases where there's a dispute, the spokesperson said.

"The Federal Interior Ministry proposes to create a new right for the people concerned, that obliges providers to make dispute settlement mechanisms available," the Ministry spokesperson said, according to a report by the Financial Times.

The CJEU case involved Google, which is the dominant search engine provider in the EU market. In its judgment, the court ruled that Google was a 'data controller' despite only indexing content published on third party websites. It ruled that the company was subject to Spanish data protection laws and that it may have to delete references to individuals that appear in its search rankings when requested to do so by individuals.

Last week the Information Commissioner's Office, the UK's data protection authority, said that it recognised the "logistical and technical" challenge search engines face in complying with individuals' 'right to be forgotten'. It said search engines need to be given time to develop and implement those solutions for managing such requests before regulators step in to resolve complaints.