This Recommendation predates the Google Spain "Right to be Forgotten" case, and highlights key concerns regarding free expression on search engines. The Recommendation appears contradictory in many respects, so - while it is an important snapshot for what the Council was thinking prior to Google Spain - it should be treated with caution.
The Recommendation acknowledges the significant role search engines play in collating and disseminating content on the internet. It advises states to allow search engines to perform this function. It notes, however, that search engines present risks to human rights by referencing content that is created by others. In particular, copyright and the right to a private life are cited as considerations for States in assessing “suitable regulatory frameworks” for giving protections to these “legitimate concerns” (Paragraph 3). The Recommendation is concerned about information that is “not intended for mass communication” (i.e., personal information).
In response, the Recommendation proposes that States engage with search engine providers to review search ranking and indexing of content which, although in the public space, is not intended for mass communication. . According to the Recommendation, this could be done by listing this content lower in its search results, with regard to the intentions or wishes of the person who produced the content ("broad dissemination as compared to content which is merely available in the public space"), including adopting default settings to achieve this (Paragraph 7).
This suggestion is in tension with the later statement that “search engine providers should not be obliged to monitor their networks and services proactively in order to detect possibly illegal content, nor should they conduct any ex ante filtering or blocking, unless mandated by a court order or competent authority” (Paragraph 13). The Recommendation anticipates that there may be legitimate requests (i.e., in relation to personal information) where search engines may be required to remove certain content from their indexes (Paragraph 13). Member States are advised to encourage search engine providers to develop tools to allow users to access, correct and delete data that search engines collected about them (Paragraph 11).
The Recommendation emphasizes that any de-indexing or filtering that is undertaken by search engines should be transparent, narrowly tailored and reviewed regularly with respect to compliance with due process requirements (Paragraph 14). The Recommendation anticipates blocking and filtering, but advises that this take place in a way that is transparent to users. Blocking of all search results should not be encouraged (Paragraph 16).
States are encouraged to work with search engines to develop self-regulatory codes, which protect individuals’ fundamental rights, including due process, freedom of expression and privacy (Paragraph 18).
Although some limitations on complete transparency of search engines practices (i.e., explaining their algorithms so users can understand why certain results are returned or not) are acknowledged, the Recommendation support the cooperation between States, private sector and civil society to: encourage providers to enhance transparency in their results, especially if the results are not complete for any reason.
Considering the proliferation of audiovisual data, mobile Internet access, and face-recognition technologies, the Recommendation raises concerns about the impact of search engines on private life and data protection. The concern addresses the combination of information about an individual, creating an image "of a person that does not necessarily correspond to reality or to the image that a person would want to give of her- or himself" and imposing "a much higher risk for that person than if all the data related to her on the Internet remained separate.” The recommendation mentions that "even long-forgotten personal data can resurface as a result of the operation of search engines" and that search engines should "promptly respond to users’ requests to delete their personal data from (extracts of) copies of web pages that search engine providers may still store (in their “cache” or as “snippets”) after the original content has been deleted." (paragraph 8).
The summary of this document is part of the report produced on the Stanford Law School Intermediary Liability and Human Rights Policy Practicum and is based on the work of Ella Hallwass. The full report “The ‘Right to Be Forgotten’ and Blocking Orders under the American Convention: Emerging Issues in Intermediary Liability and Human Rights”, can be accessed here.