On 13 may 2014, the Court of Justice of the European Union (CJEU) held that individuals have a right to obtain removal of certain search results that are shown following a web search on the basis of their name. The Google Spain ruling initiated vivid discussions around the world on the so called “right to be forgotten” (RTBF).

 

Critics declared the ruling a threat to the public’s right to know and a push for private censorship. Those in support heralded a victory of privacy, adding that the detriment to freedom of expression should be minimal in practice. A year has passed and the debate is not cooling down. Google Spain remains a hot topic and the implications of the ruling are discussed in social, technological and political contexts.

Expert Workshop on the Right to be Forgotten

In order to contribute to the debate, the REVEAL project co-organized an Expert Workshop on the Right to be Forgotten. The event took place on 30 March 2015 at the European University Institute in Florence, Italy. The goal of the seminar was to take stock of the arguments put forward in the debate and relevant developments since the Court’s ruling – such as the Art. 29 WP guidelines and the report by the Advisory Council to Google. The main objective of the seminar was to critically assess the impact of the ruling on future developments and/or other internet actors, such as online social networks. The challenges presented by the ruling were framed by three angles: right to information, extraterritoriality, intermediary liability.

Right to information

The right to information is an extension of the fundamental human right to freedom of expression, enshrined in art. 10 of the European Convention of Human Rights (ECHR). Delisting decisions by search engines affect individuals’ ability to find search results online.  Instead of the full picture, searchers  might only receive  a “clean”, story stripped of negative (but true) content. The Advocate General compared this outcome to the “bowdlerised” versions of Shakespeare’s works made appropriate for women and children in the 19^th century. A year has passed since the ruling and it seems that the argument was largely overplayed. Information published online can be of a public or private nature. Public interest in accessing information is not the same in the two cases, neither it should be. Moreover, in the EU context access to certain types of information (e.g. criminal record) is limited by law. This means that not all information can be processed equally. Accessibility of information via search engines contributes significantly to exercising freedom of expression. We should not forget, however, that search engines’ results (even when untampered) are not the full representation of the world around us. Search results are not complete or unbiased. For example, content is often dereferenced by search engine providers when a copyright violation is alleged or when it is a direct competition to a search engines’ services. Google, or any other search engine for that matter, does not recognize publishers’ right to be indexed. Curation of search results by search engines is generally accepted, even though there is little or no recourse for publishers.

Extraterritoriality

The territorial reach of the right to be delisted is one of the practical questions triggered by the Google Spain ruling. To date, search engine operator Google has limited its removal of search results due to delisting requests to its “European versions” (e.g. google.es or google.be). Search results on google.com remain unaffected. However, Google still allows its EU users to switch to the .com version, simply by clicking a button at the bottom of the page. By not taking further measures to limit access to delisted search results, Google goes against the recommendation of the EU Data Protection Authorities. According to the Article 29 Working Party, de-listing should be made effective “on all relevant domains, including .com”. Some critics argue that the approach advanced by the Working Party goes a bridge too far. Requiring Google to modify search results on all domains, seems as if the EU was imposing its values upon non-EU countries. This is problematic because each State is free to decide how to balance privacy and freedom of expression on its territory. If States would be free to restrict the accessibility of information in other parts of the world, eventually only content tolerated by the most restrictive regime would stay available online. Defenders of the global approach point out how easy it is to circumvent locally applied delisting (by switching to .com or using proxy servers). Global implementation of delisting decisions would ensure that the fundamental rights and freedoms receive the effective and complete protection. To balance the competing interests at stake, the following criteria were proposed for Internet search: a) risk of impact in foreign States; b) purpose of delisting; c) degree of harmonization, and d) territorial connection. Participants of the seminar discussed pros and cons of the proposed approach.

Intermediary liability

An often heard criticism of the Google Spain ruling resemble closely the well-known discussion of the intermediary liability regime in the E-Commerce Directive and the notice-and-take down procedure for removal of illegal online content (notice and take down). The list of main accusations involves a lack of safeguards for balancing of rights, too heavy burden for intermediaries and no due process. The flaws can easily lead to over-compliance with removal or delisting requests and in effect, to private censorship. Procedural aspects of both regimes are not the same, despite bearing many similarities. For example, intermediaries’ practice of notifying the publisher about a received complaint is recommended in case of take down requests. In the context of delisting similar notifications prove to be controversial. If the measure provides the publishers with an opportunity to reply and defend their use of the content, it allows a fuller understanding about the circumstances of the case. Currently, the notification rarely serves this purpose but instead leads to misinformation of the publishers and the public. The workshop attendees discussed also an idea of introducing a new type of administrative body whose competences would go beyond data protection. The administrative body would ensure that different rights are equally taken into account by focusing on broad array of digital rights, for example privacy, freedom of expression and consumer protection. The idea resembles the approach taken recently by the Brazilian Marco Civil and is worth considering further.

The workshop participants highlighted the utmost importance of transparency of the delisting procedure. Providing information on statistics, including types of content generating the complaints, grounds and criteria for delisting contributes to a better understanding of the under-laying process. Since last year, Google publishes information about delisting requests but the report is limited in scope and detail. The information provided is insufficiently granular to draw any meaningful conclusions. Lack of transparency by Google and other search engines led a significant number of Internet scholars from the EU and the US to sign an open letter to Google. The letter requested the company to release data about compliance with the “right to be forgotten” complaints. As pointed out, (1) the public should be able to find out how digital platforms exercise their tremendous power over readily accessible information; and (2) implementation of the ruling will affect the future of the RTBF in Europe and elsewhere. The request for transparency is consistent with the recommendations by the Art. 29 WP and Google’s Advisory Council.

The discussion of the three aspects of the Google Spain case will be extended in the next REVEAL legal publication by Jef Ausloos, Brendan Van Alsenoy and Aleksandra Kuczerawy (forthcoming).