“We’re clearly implementing it — the way we’re doing it is workable,” Eric Schmidt said on Tuesday, less than enthusiastically. “It may or may not be comfortable.”
The [company]Google[/company] chairman was speaking at the Berlin stop of his company’s “right to be forgotten” roadshow, which is touring Europe’s biggest capitals as Google tries to figure out the best way to stick to an infamous Court of Justice of the European Union (CJEU) ruling earlier this year. If asked by the subject, the U.S. search firm now has to take down links to some personal information when it’s not in the public interest. And while Google is “clearly implementing” what the court said, the lack of clarity in the ruling itself is making for a tough ride.
(For the record, the CJEU ruling was more about the right to be de-linked than the “right to be forgotten” — a matter for upcoming legislation — but it’s playing in the same ballpark and Google is using the latter term to describe what it’s dealing with now.)
“Google has been uncomfortable with this decision for many reasons,” Schmidt said. “The first being that the detail is somewhat ambiguous, and the second is because it means hiring humans, and we don’t know how many humans we have to hire – we don’t know the extent of the problem.”
Should Google simply automate all privacy-related de-linking requests in the EU? Should it err toward not granting them? Should it ultimately be down to national courts to decide, or should data protection authorities have the final say? These are the kinds of questions the roadshow is dealing with. In each city, Schmidt and his advisory council are taking evidence from half a dozen or so local experts, to help them figure it all out.
Many questions, many opinions
Schmidt aside, that advisory council comprises experts on free expression and privacy. A couple were missing on Tuesday, but those at the event included: Le Monde editorial director Sylvia Kaufmann, lead Wikipedian Jimmy Wales, University of Oxford ethicist Luciano Floridi, former Spanish data protection czar José Luis Piñar (pictured above with Schmidt), U.N. free expression rapporteur Frank La Rue, former German justice minister Sabine Leutheusser-Schnarrenberger and KU Leuven internet law professor Peggy Valcke.
While it’s tempting to mistrust a panel assembled by Google itself, having sat through the Berlin session I can confirm that we’re talking about a formidable bunch of independent-minded people with a wide range of opinions. Leutheusser-Schnarrenberger is a fan of the CJEU ruling, for example, while Wales is overtly hostile toward it. La Rue sees it as a weak decision, noting that he “would not put the burden on any corporation” to make censorship decisions. Valcke pointed out that the CJEU was ruling on a specific case brought before it, and “could not start philosophical reasoning on its own.”
The local experts, too, were a varied lot. Matthias Spielkamp, representing Reporters Without Borders, said data protection authorities should not judge “right to be forgotten” cases because they lack grounding in freedom-of-speech principles; they come at it from one side only. Moritz Karg, representing the office of the Hamburg data protection commissioner, argued not only that each European country should apply local nuances to how it judges such cases, but that links “should be removed globally” based on those decisions.
(Karg also prompted the biggest round of laughter in what was already a reasonably convivial session. After someone asked whether any of the panellists had any relationship with Google, he wryly addressed Schmidt: “I do. We’re the ones that control you.” This from someone whose office is threatening Google with a €1 million fine over privacy violations, in the knowledge that the firm counts such a sum as a pittance and will not change its ways. Who says Germans don’t have a sense of humor?)
More from the local experts: Lawyer Niko Härting decried the whole concept of a right to be forgotten as “a romantic, daft idea” and urged Google not to make the ruling more palatable than it is. Berlin district court judge Ulf Buermeyer said the ruling could “reimplement” the fading nature of human memory, which has given way to permanence in the age of the internet.
“By implementing [the ruling] we can iron out the kinks,” Buermeyer argued. “The court made a giant leap into uncharted territory. [We should] try, maybe even fail, and then rinse and repeat.”
The European experiment
As you can probably tell by now, there are no easy answers here. This is an extraordinarily complicated situation that isn’t helped by a vague ruling referring to data that’s “inadequate, irrelevant or excessive in relation to the purposes of the processing.” And everyone has a different opinion on what should happen now.
But, in a way, that’s all right. As Floridi said, one of the great advantages of the CJEU ruling is that “we wouldn’t be having this conversation without it.” Valcke, too, noted that academic conferences about online privacy issues “are usually less attended by journalists” than the Berlin event was. (I imagine the London event on Thursday will be even better attended.)
What’s more, this debate is playing out for audiences beyond Europe. U.S. consumer advocates urged Google this week to give Americans the same ability to ask for their information to be de-linked. Given the existence of the First Amendment there, they’re deeply unlikely to get what they want, but the mere fact that they’re asking suggests these are issues that are worth thrashing out for the benefit of many.
For those who don’t see the non-fading memory of the internet as a foregone conclusion, this European mess is playing out as a useful (and perhaps usefully distant) experiment. When Schmidt’s advisers publish their recommendations early next year, people will be listening around the world.