Europe’s Top Court Is Debating the ‘Right to Be Forgotten’ After Google Refused Requests

May 16, 2017

The "right to be forgotten"—or stopping certain web search results from appearing under searches for people's names—will be debated at the European Union's top court after Alphabet's Google refused requests from four individuals.

In May 2014, the Court of Justice of the European Union (ECJ) ruled that people could ask search engines, such as Google and Microsoft's Bing (msft), to remove inadequate or irrelevant information from web results appearing under searches for people's names—dubbed the "right to be forgotten".

Google has since received over 720,000 removal requests and accepted about 43% of them, according to its transparency report.

Four individuals who had asked Google (googl) to remove links to webpages about them appealed to the French data protection authority after the search engine company refused their request.

The French privacy regulator, the CNIL, agreed with Google's decision, prompting the individuals to take their case to the French Conseil d'Etat, France's supreme administrative court, which referred it to the Luxembourg-based ECJ.

The ECJ "now has to decide whether 'sensitive personal data'—such as the political allegiance of an individual, or a past criminal conviction reported in the press—should always outweigh the public interest", Google's senior privacy counsel Peter Fleischer wrote in a blogpost.

"Requiring automatic delisting from search engines, without any public interest balancing test, risks creating a dangerous loophole. Such a loophole would enable anyone to demand removal of links that should remain up in the public interest, simply by claiming they contain some element of sensitive personal data."

A Conseil de'Etat statement said the requests from the individuals concerned a video that "explicitly revealed the nature of the relationship that an applicant was deemed to have entertained with a person holding a public office"; a press article on the suicide of a member of the Church of Scientology mentioning that one of the applicants was the public relations manager of that church; several articles related to criminal proceedings of an applicant; and articles about the conviction of another applicant for having sexually abused minors.

The French court said a number of "serious issues" had arisen with regard to the interpretation of European law in the case before it.

"Such issues are in relation with the obligations applying to the operator of a search engine with regard to web pages that contain sensitive data, when collecting and processing such information is illegal or very narrowly framed by legislation, on the grounds of its content relating to sexual orientations, political, religious or philosophical opinions, criminal offenses, convictions, or safety measures," the court said.

The CNIl declined comment at this point of the court procedure.

The case number is C-136/17. A date for the hearing has not been set.

"We will be advocating strongly for the public interest balancing test to apply to all types of delisting requests—including those containing sensitive personal data," Fleischer said.

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