Google advisory council: Right to delist should only apply in EU

To help it handle the EU ruling that forces it to delist certain results about people, Google assembled a team of expert advisors that travelled the continent, seeking out various opinions on how best to implement Europeans’ data protection rights. On Friday that advisory council published its report, providing recommendations for the way forward.

The Google advisors’ report (embedded below) makes for a fascinating read, but the highlights are its assertion that the delisting should only apply in Europe, and its nuanced discussion of when publishers or webmasters should be notified of delisting.

The ruling was about data that’s inadequate, irrelevant or excessive – it’s a fundamental right in Europe that people can have such data deleted, and the Court of Justice of the European Union decided last year that this data protection right can be applied to search engines.

The global question

The advisors’ call for a limited geographical scope in applying the so-called “right to be forgotten” – Google’s favored term, but one the group strenuously objected to – directly contradicts the guidance given by the Article 29 Working Party (WP29) band of EU data protection regulators.

WP29 argued that, if the link to the data in question is only removed from Google’s European domains, it’s far too easy for people to access other Google domains, therefore the delisting should take place globally. Indeed, one of Google’s advisors, former German justice minister Sabine Leutheusser-Schnarrenberger, agreed with this in a dissenting opinion in today’s report.

Overall, though, the council said delisting should only apply in Europe. Its report acknowledged that global delisting “may ensure more absolute protection of a data subject’s rights”, but it pointed out that Google users outside Europe had the right to access information according to their own country’s laws, not those of EU countries.

It continued:

There is also a competing interest on the part of users within Europe to access versions of search other than their own. The Council heard evidence about the technical possibility to prevent Internet users in Europe from accessing search results that have been delisted under European law. The Council has concerns about the precedent set by such measures, particularly if repressive regimes point to such a precedent in an effort to ‘lock’ their users into heavily censored versions of search results.

Notifications

On the subject of whether or not to notify publishers that one of their pages is going to be delisted due to a data subject exercising their right, the council noted that it had “received conflicting input about the legal basis for such notice.” It then provided something of a fudge: “Given the valid concerns raised by online publishers, we advise that, as a good practice, the search engine should notify the publishers to the extent allowed by law.”

In other words, do what the law allows, whatever that is. In the opinion of WP29, contacting the webmasters in this way may itself involve “processing” of the subject’s data, which requires a legal basis – and there is none. However, the advisory council and WP29 did agree on one aspect of this question: If the decision to delist a particular piece of information is especially complex and difficult, it may be helpful to all concerned if the search engine could ask the publisher or webmaster for help.

The council also suggested four broad categories of criteria that Google and other search engines should apply when deciding on specific cases:

  • The data subject’s role in public life (Is the person a celebrity or do they have a special role in a certain profession?)
  • The nature of the information (Is it about the subject’s sex life or finances? Does it include private contact or other sensitive information? Is it true or false? Does it relate to public health or consumer protection or criminal information? Is it integral to the historical record? Is it art?
  • The source of the information (Does it come from journalists or “recognized bloggers”? Was it published by the subjects themselves and can they easily remove it?)
  • Time (Is the information about a long-past minor crime? Was it about a crime that’s relevant to the subject’s current role? How prominent were they at the time? Is the data about the subject’s childhood?)

The advisors recommended that Google’s delisting request form should have more fields so the subject can submit more information that will help the balancing test – for example, in which geographical area they’re publicly known, or whether their role in public life was deliberately adopted or not.

Other opinions

The dissenting opinions at the end of the report were interesting. That of Wikipedia founder Jimmy Wales was the starkest – “the recommendations to Google contained in this report are deeply flawed due to the law itself being deeply flawed” – as he entirely opposes the concept of a company being forced to adjudicate between free expression and privacy.

Frank La Rue, the former U.N. free speech rapporteur, also said this shouldn’t be down to Google, arguing that only a state authority should be establishing criteria and procedures for privacy protection. La Rue also criticized the scope of the EU’s data protection itself, saying data should only be removed or delisted if it is “malicious, is false, or produces serious harm to an individual.”

Overall, I think the report is an important document. There are of course many reasons to criticize the process that led to its drafting – it was done according to Google’s terms and timescale, and under the misleading banner of the “right to be forgotten” – and some of its recommendations don’t actually gel with current EU law:

However, I think it’s fair to say the council members were independent-minded and not all singing from the same hymn sheet. Ultimately, as a counterpart to the Article 29 Working Party’s more legalistic set of recommendations (that is their job after all), this was a valuable exercise in chewing over the deeper implications of that CJEU ruling.

Report of the Advisory Committee to Google on the Right to Be Forgotten

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Google fight over Mosley orgy shows censorship creep in Europe

A rich, powerful man won a series of court victories in France and Germany that arguably helped pave the way for Europe’s controversial “right to be forgotten”, which has helped people erase history by scrubbing search engines. Now, that man is pushing a U.K. court to go a step further — and, unfortunately, it sounds like the court will agree.

As the BBC explains, Max Mosley was in the High Court this week demanding that Google be held accountable for images that show him romping with five German-speaking prostitutes in a prolonged S&M orgy in a posh London apartment.

Mosley, who is the former head of F1 racing and the son of a prominent U.K. fascist, already has the right to ask Google to remove specific search results that link to the pictures or videos in question. What he is seeking now is for the court to designate Google as a publisher in its own right, which would make it responsible for finding and deleting any other links that might appear in the future.

The distinction is crucial because a court ruling in Mosley’s favor would transform Google and other search engines from a passive directory into an active censor. It is the difference between asking a newsstand to remove a certain magazine that has an offensive image, versus making the newsstand responsible for ensuring the image never appears in any other publication it sells in the future.

To support his position, Mosley’s lawyers are pointing to a court ruling against the defunct tabloid News of the World, which was forced to pay Mosley £60,000 for defamation and violating his privacy. They say Google is similarly liable for violating a U.K. law known as the Data Protection Act.

Google’s lawyer, meanwhile, is asking the court to throw out the case on two grounds: that Mosley no longer has a privacy right in the images since they have been so widely disseminated, and because the search engine is not a publisher in the first place. As the FT reports:

“Max Mosley remains in the public eye as a campaigner for privacy rights and this has never been forgotten or receded into the past,” [the lawyer] told the court, adding that in legal terms Google was not a publisher of the images.

While the case would be quickly thrown out in a North American court, other news reports suggest Mosley’s argument gained traction with the judge. The Mirror, for instance, quotes the judge in the case as saying “damages may simply not be available” to Mosley, but that an injunction is “much less problematic.”

This distinction will be cold comfort for Google since Mosley, if the judge issues an injunction, will be in a position to seek damages or a contempt of court charge if Google fails to comply with an order not to display or link to the images.

In the bigger picture, Mosley’s latest gambit appears likely to cause Europe’s creeping cloak of internet censorship to expand further. And a U.K. ruling in his favor will also bring about a further fracturing of the internet as a whole, as North Americans see one version of the web — including the Mosley video — while Europeans see a different one punched full of holes.

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