It has always been a challenge in suing someone for defamation that the lawsuit may draw more attention to the defamation than it had previously obtained. A fortiori in cyberspace… This seems to have happened (again) recently in France, where a restaurant’s suit against a critic whose negative review featured high in Google’s search results about the restaurant has now replaced the review in the rankings… “In typical Internet style, Google searches for the restaurant now prominently feature articles about it suing [the author].“
The exercise of a right to be forgotten in Europe under the CJEU’s ruling on the point has the advantage to the defamed person that the nasty links can be suppressed from search results privately, by application to the search engines, rather than in a public court battle. Making such applications is described as a ‘new service industry’.
Would the fact of suing for defamation (or of being defamed) be sufficiently a matter of public interest that one would not have the right to have that fact ‘forgotten’ by the search engines? Would one have to wait for some years for the dust to settle (if not the suit itself) before any such ‘right’ could be exercised?
It has been suggested to me that the CJEU’s decision does not itself refer to any ‘right to be forgotten’, and it required only that the name of the applicant be removed from the search results, and not the entire link to the original online newspaper articles – so if one were searching by other details than the name of the applicant, the articles would still show up in the search.
I understand the desire to limit interference with access to information, but does this make sense as a matter of privacy law (which was what was being interpreted in the CJEU’s decision)? If that law applies to personally identifiable information, i.e. information that is capable of being linked to an individual, then producing the story by a search of the details is not much more respectful of privacy than a search of the person’s name directly. That’s particularly true when the name is in the stories that one finds by the search…