Clearing the past

E.U.'s "Right To Be Forgotten" gives Google increased editorial obligations
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Danielle Keeton-Olsen

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Google's E.U. sites warn users that their searches might be missing results.

One of the most powerful and prominent Internet companies must shoulder a new responsibility: increased editorial control.

Within the European Union, Google and other search engines now must make thousands of decisions to remove links that would appear in searches of individuals’ names.

The mandate upon search engines comes from an E.U. Court of Justice decision that enforces a “right to be forgotten” for its citizens.

The right allows citizens’ the ability to request the removal of links to information that is inadequate, irrelevant or excessive pertaining to searches of citizens’ name. That right, however, will force search engine employees to make decisions on whether those requests should be fulfilled.

The ruling, which cannot be appealed, highlights how seriously the E.U. asserts a right to privacy for individuals. Because the U.S. does not have a right to privacy written into its constitution, privacy experts claim that U.S. citizens and journalists are not likely to see a “right to be forgotten” in the near future.

The task of forgetting

Individuals within the E.U. can now ask a search engine to remove links that “appear to be inadequate, irrelevant or no longer relevant, or excessive in relation to those purposes and in the light of the time that has elapsed,” according to the May 13 ruling.

In response, Google set up a web form to process individuals’ requests, requiring those who submit forms to verify their identity in order to prevent fraudulent requests. Google then alerts individuals when their request is being processed, as well as the original website when one of its links is removed from a Google search.

On its European sites, Google now includes a message explaining that search results for individuals’ names might be filtered by removal requests.

The original links still exist on their parent sites, but the ruling makes them difficult to find from a European Internet connection. Websites that originally created the link most likely will not have to expunge their stories under this ruling, said Steven Bennett, a partner at the boutique law firm Park Jensen Bennett LLP, who has been following progress of the E.U.’s privacy legislation.

“That is a pretty unique way of splitting the baby,” Bennett said. “That may not have been the most predictable result, but it is consistent with the directive.”

By July 11, Google announced that it received a total of 70,000 removal requests covering 250,000 websites. The company established a legal team to individually review each take-down request in order to grant or deny it, said David Drummond, Google’s senior vice president of corporate development and chief legal officer, in an op-ed published in several European publications and Google’s blog.

“Only two months in, our process is still very much a work in progress,” Drummond wrote.

Following the flood of requests for content removal and a few accidental content take-downs, Google announced that it created an advisory council to oversee the requests and the progression of the ruling.

The council — comprised of two Google executives and eight leaders in journalism, technology and law from throughout the E.U. — will hold a livestreamed consultation in the fall to gather input on Google’s “right to be forgotten” policy going forward.

“A robust debate is both welcome and necessary, as, on this issue at least, no search engine has an instant or perfect answer,” Drummond said in his op-ed.

Current U.S. privacy laws would make it difficult to implement a “right to be forgotten” like that of the E.U. In order to claim an invasion of privacy in the U.S., a plaintiff must show that the defendant either published a private fact or intruded upon seclusion. To make either of those claims, the plaintiff also must show that there was an element of offensiveness.

The invasion of privacy is considered offensive if it is “so unwarranted” as to shock or “outrage the community’s notions of decency” or “a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern,” according to Reporters Committee guides.

Franz Werro, a professor of law at Fribourg University and Georgetown University Law Center, said because of current U.S. legal precedent, journalists should not be concerned about the possibility of a “right to be forgotten” when crossing the Atlantic.

Google only considers removing individual information from its American services when it could cause individuals’ specific harm, such as published social security numbers, bank account numbers or credit card numbers.

The search engine’s U.S. division is not likely to remove offensive material unless it involves child sexual abuse or is a graphic image, but users can turn on Google’s SafeSearch filter, which primarily prevents pornographic images from appearing on a search feed.

The precedent for a privacy right in Europe

In contrast, the E.U. includes a right to respect for private and family life and a right to protection of personal data within its Charter of Fundamental Rights of the European Union. The two privacy rights precede the E.U.’s right to freedom of expression and information.

“Next to a constitutional entitlement to a free press, to a freedom to speak, there is a constitutional entitlement to private life under European law,” Werro said. “What the courts [in the E.U.] have to do by law is balance these entitlements against one another.”

Many European countries inside and outside the E.U. have similar protections for personal privacy written into their constitutions, so the case, which originated in Spanish courts, in theory could have emerged from other countries, Werro said.

The ruling originated after Spanish lawyer and citizen Mario Costeja González filed a complaint in 2010 against Google Spain and La Vanguardia Ediciones SL, a Spanish newspaper publisher, to take down links that came up when searching Costeja González’s name.

Spanish courts dismissed Costeja González’s complaints against La Vanguardia, but he appealed the decision to the E.U. Court of Justice.

The court found that because operators of search engines serve as “controllers” of data, they should hide links that individuals request removed from searches of their names, putting search engines such as Google in the difficult role of content regulators.

European journalism under the ruling

Because the ruling is an interpretation of existing legislation, Werro said journalists in the E.U. should know how to navigate the right to be forgotten because they have been previously subjected to the right of individual privacy in the E.U.

“I think that journalists [in the E.U.] are not confronted with something new, that they didn’t know of,” Werro said. “I don’t think that this decision will surprise them or inhibit them or have a chilling effect.”

However, news publishers and other internet users have responded to Google’s removals by describing the deleted articles, speculating on why articles have been deleted, and providing links to the articles in question within news updates on the right to be forgotten.

Journalists from publications within the E.U., such as BBC’s economics editor Eric Preston, have questioned why Google “killed this example of my journalism.” His article only mentioned one person, the former head of Merrill Lynch, but he suspects that the take-down request that Google honored was from one of the commenters on the article, because a Google search for the Merrill Lynch executive still shows the BBC article.

Google has not blocked the E.U.’s access to a U.S. publication’s link, but Kurt Wimmer, a partner at Covington & Burling LLP who specializes in privacy and data security, said he and other lawyers at the firm are considering what the impact of E.U.’s right to be forgotten might be.

While the ruling should be limited to those within the E.U., it is possible that U.S. publications which have written about Europeans could cross into the right to be forgotten’s boundaries, Wimmer said.

Regardless of a publications’ jurisdiction, Wimmer, whose clients include CBS, The Washington Post and Gannett, Co. Inc., said he thinks media organizations should be given more opportunity to comment on the links Google removes from its feed, considering the decisions to eliminate Google content are based on human decisions rather than algorithms.

“Any time you have these decisions being made without input, they tend to be less reliable decisions,” Wimmer said.

Werro said he thinks the entity that faces the largest struggle under the new ruling is Google.

“In Europe they’re governed by European law,” Werro said. “Google cannot be above the law.”

Werro said he believes Google has done a good job in acting quickly upon individuals’ requests to be forgotten, but he believes Google is not happy about the decision based on the amount they’ve worked with the E.U.’s Court of Justice in order to prevent such a ruling.

“If they really don’t like it, they have to go do their business elsewhere,” Werro said.

Internet users in the E.U. should be able to get around the filtered results by forcing a connection through U.S. Google or using a proxy connection such as Tor, said Parker Higgins, an activist for the Electronic Frontier Foundation.

Although journalists will likely have an easy time getting around it, Higgins said EFF is not happy with the E.U.’s ruling.

“I think that there are ways in which the ruling is not terribly workable,” Higgins said. “It sets up this split where truthful information can be legal online but a little harder to find, and that’s not how the Internet really works.”

The ruling essentially increases Google’s control over editorial content in many western nations, Higgins said. This is especially concerning because Google already creates a “prism,” or an editorial filter through which researchers view the Internet based on popularity and advertising, Higgins said.

“There’s something not quite right about Google being given tens of thousands of cases and being told to decide on each,” Higgins said. “The end result is that we don’t really know what goes into their decision-making process, and that diminishes people’s trust in the resources that they’re getting and that’s not good for Google either.”

Ever-increasing European privacy legislation

The E.U.’s new requirement for search engines is a step toward passing legislation on individual data protection, said Bennett, a lawyer with an interest in confidentiality matters in international relations.

The governing body is working to interpret the E.U.’s right to protection of personal data as it applies to any companies that collect data of users. Under the proposed law, those who hold user data deemed unnecessary to their operations could be severely fined, Bennett said in a blog post about the recent ruling.

Based on the legislative history of the E.U. regarding privacy issues, Bennett said he was not surprised by the ruling, but he thought it was a little odd that the court interpreted an existing directive to define the right to be forgotten, rather than creating it as part of a new directive.

Because the incident leading to the ruling occurred entirely within E.U. boundaries, the Court of Justice was able to pass its interpretation relatively smoothly, Bennett said. However, he said he is interested to see how this ruling will play out on a global scale.

The Internet operates on a global scale but has no treaty or body to dictate or enforce rulings such as the right to be forgotten, so, hypothetically, Google’s decision on a widely-published takedown may not have a clear-cut answer.

“[The recent ruling] was an easy case from a jurisdiction perspective,” Bennett said. “When the facts change, it’s anybody’s guess.”