On 13 May 2014 the ECJ held that Google was subject to EU data protection rules, meaning that individuals had the right to ask them to stop linking to material that could be deemed “inaccurate, inadequate, irrelevant or excessive”.
Dina Shiloh, a solicitor at Mishcon de Reya who specialises in media law, commented on the impact this decision has made during the last year: “In principle, the decision has demonstrated that Europeans have the right to control their own data and how it is processed. The decision showed that in Europe, privacy is not dead. Google can no longer argue that it is a neutral ‘wall’ with no responsibility to the content it links to.”
However, one year on from the ruling, it remains unclear whether the decision was a positive move by the ECJ. The court gave little guidance on how requests should be decided. This left Google to establish when to draw the line on its own.
Peter Fleischer, Google’s global privacy counsel, cited an easy case – a photo taken of a woman sunbathing topless while on vacation, published without her permission.
“We have a lot of easy cases,” Fleischer said. “The little shoplifting thing, the little this or that. They just come down, forget it, move on.”
One it comes to harder cases, they get bumped up to the senior Google panel, where employees discuss each case, then vote.
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What we do know is exactly how popular the right to be forgotten has been.
The internet giant has received 253,617 requests, dropping from a high of around 1,500 per day in the first three months to the current level of about 500 per day. These statistics come from Reputation VIP, a French company that helps people make the requests. Google has rejected 70 per cent of requests in recent months, compared to when it accepted the majority last year.
Google, which said it had been “disappointed” with the decision, is refusing most of the requests that it receives.
The blue chip company has consistently said that it considers it a mistake to be made the the arbiter in such cases. This is something that has been echoed by Wikipedia co-founder Jimmy Wales in 2014, who was part of the Advisory Council set up to advise Google on “performing the balancing act between an individual’s right to privacy” and the public’s interest in access to information.
He said: “I completely oppose the legal situation in which a commercial company is forced to become the judge of our most fundamental rights of expression and privacy, without allowing any appropriate procedure for appeal by publishers whose works are being suppressed. The European parliament needs to immediately amend the law to provide for appropriate judicial oversight, and with strengthened protections for freedom of expression.”
Dave King, CEO of reputation management company Digitalis agreed with Wales, pointing to the fact that the guidance by the court was limited in terms of how Google should determine, for example, what constitutes public interest.
“Some might rightly say that’s a pretty subjective call for a private company to have to make,” King said.
However, the company is now in talks with the Information Commissioner’s Office (ICO) over 48 cases it is accused of getting wrong. The ICO has asked the internet giant to revise its decisions. Should the discussions over those cases fail, Google could face a fine and a legally binding enforcement notice that could lead to court action, if the firm refused to comply.
An ICO spokesman said: “Since the details of the right to be forgotten ruling were first announced, we have handled over 183 complaints from those unhappy with Google’s response to their takedown request. In around three-quarters of these cases, we have ruled that Google was correct to turn down an individual’s request to have their information removed. This suggests that, for the most part, Google are getting the balance right between the protection of the individual’s privacy and the interest of internet users.”
Another issue is whether Google should be forced to remove links it has agreed to take down in Europe elsewhere in the world as well. Executives have repeatedly said that they believe they should only remove links from the European versions of Google’s search engine. It was suggested that they wanted to avoid the precedent that one region can set global rules for the Internet.
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The head of France’s data-protection regulator, Isabelle Falque-Pierrotin, said she would issue a formal compliance order if the company doesn’t comply.
“We want the removals to be applicable on all Google sites,” she said. “Their position will have to change.”
Johannes Caspar, head of the data-protection regulator in Hamburg, suggested that the territorial question is “a central demand for us”. According to Casper, a potential middle ground would involve using geolocation to remove links from Google.com only for searches coming from the EU.
“Currently, the delisting effects are easily circumvented even from within the EU,” Caspar said.
One year on, the debate over whether the decision was a good or bad idea is far from over.
King believes that the move has been a good one. He commented: “We see the judgement as being a positive result for the man on the street looking to remedy errors of fact or no longer relevant, historic information. In that sense, it’s a good thing. But for the high-profile individual or for those with interests in multiple jurisdictions it can enhance rather than mitigate the reputational fallout of historic issues.”
Essentially the ECJ is proposing a privacy law that could potentially extend the right to databases and other websites. So while Google wrestles with how to balance privacy and the right to information, and authorities ponder whether such companies should have the right to do so in the first place, the discussion becomes much bigger than just search-engine results.
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