And I have some difficulties with the letter.
I should start by agreeing that there may be circumstances where offensive material must be de-listed by the search engines.
However, the letter’s key sections are:
“De-listing decisions must be implemented in such a way that they guarantee the effective and complete protection of data subjects’ rights and that EU law cannot be circumvented. In that sense, limiting de-listing to EU domains on the grounds that users tend to access search engines via their national domains cannot be considered a sufficient means to comply with the ruling. In practice, this means that in any case de-listing should also be effective on all relevant domains, including .com.
Moreover, search engines should not as a general practice inform the webmasters of the pages affected by removals of the fact that some web pages cannot be acceded from the search engine in response to a specific name-based query.”
Is this a problem?
It depends critically on what the material is and whether people have confidence in the panel that will ultimately decide what material is to be censored. I don’t think it should be up to the search engines to make the entire decision – even though, of course, its their commercial activities that led to a decision to list the relevant website in the first place.
Fortunately, there are some 40+ former senior privacy regulators that might be available (for a fee) to offer advice on an as-required basis. Unshackled from their former roles, some may have more pragmatic minds that I was once led to believe. So, perhaps we need a “Star Chamber” of former national regulators who can preside over the harder cases.
I do have a difficulty in accepting that decisions, even if made by the “Star Chamber”, should have an effect on individuals that search outside the EU. If, for example, I was the Minister of Information in some backward state I might well be determined to control the flow of information within my own State, and might well be embarrassed if certain information were to be disseminated outside it. But I might be rightly condemned in some quarters for trying to censor information that others had a legitimate right to know.
I also have difficulty in accepting the view that webmasters should not be told of their sites that had been de-listed. Are we to allow secret courts within the EU being able to dispense “justice” in ways that can’t be challenged? I do hope not.
But I suppose the Article 29 Working Party has to be seen to be doing something.
If nothing else, it's encouraging a debate on the salient issues.
Whether it's views are taken on board by the global Internet search engines is another matter entirely.