ISRAEL—Right To Be Forgotten Introduced

Soon after the European Court of Justice decision in May about the so-called "right to be forgotten," this right was introduced into the Israeli law.

A bill sponsored by a bipartisan group of seven Knesset (Israeli Parliament) members proposes to establish persons' state of oblivion by amending the Protection of Privacy Act (PPA).

Although the PPA already includes a general right to delete or rectify incorrect and not up-to-date data, this bill is aimed at enacting a specific search engine-focused right for data deletion.

The bill's explanatory words leave no room for confusion. The purpose of the bill is to allow any person to take down from Internet search engine servers information that may violate that person's right to privacy and damage her good name. The bill's sponsors further explain that unlike sporadic and transient news stories and articles, search engines algorithms create an unlimited-in-time new contextual story, which may cause actual damage. Yet, the bill acknowledges that data deletion should be balanced with the public's right to access information.

Under the bill, a person who views herself as hurt from the publication of personal information may request a search engine to remove that information. If the search engine refuses or does not respond, the requester may ask a court to issue an order to take down the violating information. The court must balance between the extent of damage in the publication and the public interest.

It appears that this bill follows the same highly problematic approach presented by the EU court, namely, that a search engine provider must use judicial discretion before deciding whether to respond favorably to a takedown notice. Moreover, neither the EU court nor this new bill provide specific guidelines or structuring instructions for the way the search engine should exercise its discretion.

From a legal perspective, this is a wrong judicial power privatization mechanism. From a practical perspective, search engines are likely to produce, in good faith, highly questionable results in responding to takedown requests. On a public policy level, search engines are incentivized to delete information upon request because no one will reimburse them for their litigation costs if they decide to go to court and defend the public's right to access information. Therefore, the proposed mechanism is likely to serve as a chilling effect on that public right.

The full text of the bill (in Hebrew)