In a previous blog post, we covered the drama surrounding the right to be forgotten (aka the right of individuals to have personal information removed from the internet that they find embarrassing, harmful, or potentially stigmatizing), its express adoption in the EU, and Google’s alleged obligation to investigate.
Since last spring, Europeans have been able to submit a demand to Google to have search results about their names removed,with Google “assess[ing] each individual request and attempt[ing] to balance the privacy rights of the individual with the public’s right to know and distribute information.” There have been 283,276 requests concerning over a million links since Google started the process.
Essentially anyone in Europe who wants to remove search results displayed following a search of their name can make a request to a search engine. The search engine then reviews the request and grants it if all three legal conditions are met.
According to the EU Court of Justice, the three conditions are:
- Inadequacy; and
- Irrelevance or excessiveness of the purpose of the data-processing.
You’re Outta There
Around 41% of the examined links were removed from EU Google results, dealing with things such as overturned convictions, crimes where the person requesting removal was the victim, and sites showing private addresses or personal information. The websites hosting these links are still live, but now they no longer appear in Google search results based on the requester’s name. It’s a bit of an odd workaround, because although searching “Joe Shmoe” won’t return harmful results, searching “accused Chicago serial killer acquitted” will pull up the same article that Joe Shmoe was trying to avoid. Still, it’s easy to see how this is helpful, for example, employers casually searching Joe Shmoe won’t automatically see that he was suspected of being a serial killer, and may never find out without doing some more digging. Considering his acquittal, it seems fair to make things a little easier for him. The same process goes for embarrassing photographs and old livejournal posts. And, in all fairness, the vast majority of the removed links will not be as sensational as the hypothetical accused serial killer.
On the other hand, links that referenced old or current criminal convictions, official government documents, and newsworthy information or information in the public interest (“financial scams, professional malpractice, criminal convictions or your public conduct as [an elected or unelected] government official”), for example, were denied and can still be found based on each individual’s name. And in this, Google is standing strong. Perhaps because Google is an American company, it espouses the same importance of freedom of speech, which is why it considers whether something qualifies as “political speech” before deciding whether to remove it. For Google, accessibility of information is of primary importance, which is why it fought the initial ruling and uses a balancing process when considering requests.
Google is not the be-all end-all, however, because in the event that Google (or any other search engine) refuses a “delisting,” people can still lodge a complaint with the data protection authority in their country. It’s too early to see what these reversal rates are, and whether the authorities seem biased in way or the other, but people are already filing complaints and saying Google got it wrong.
Because the right to be forgotten is law only in the EU, these results are only removed from the local versions of Google, such as <<Google.fr>> (France) or <<Google.de>> (Germany). This means that a quick search on the original <<Google.com>>, as we use here in the USA, will still pull up any results pertaining to the complaining individual.
Some may call this a half-measure on the part of Google, and at least one French Watchdog group is pressuring Google to erase the search results worldwide, rather than just in the EU. The Commission Nationale de L’informatique et des Libertés (CNIL), which is France’s data protection authority, may launch a process leading to sanctions if Google doesn’t comply with the spirit of the ruling and delist from all of its incarnations. And CNIL is not alone, many other EU data protection authorities and experts believe that the results should be delisted globally, and they make a good point. It’s not exactly difficult to type in <<Google.COM>> as opposed to <<Google.IT>> (Italy). It’s clear that Google is unhappy with this law, but their “technically compliant” attitude is fooling nobody.
Who’s the Most Embarrassed?
Most of the requests came from France (58,000 or about 20%), followed by Germany (17%), Great Britain (12%), Spain (9%), and Italy (7%). The websites with the most removed domains include Facebook with 8,032 removed links; YouTube with 4,551; GooglePlus with 3,322; and Twitter with a meagre 3,030 links.
But what about our embarrassed compatriots in the USA? The right to be forgotten does not yet extend to America, although the advocacy group Consumer Watchdog thinks it should. On July 7, 2015, Consumer Watchdog submitted a complaint to the FTC claiming that the lack of a similar right to be forgotten in the USA is an “unfair and deceptive trade practice.” It claims that, because Google could “easily” honor similar US requests and already offers this “basic privacy tool” to millions of Europeans, withholding it from Americans makes it an unfair practice in the United States. The complaint emphasizes that it’s “not censorship” because the content is not removed from the web, it merely allows a person to remove their name from being immediately associated with certain content.
Unfortunately, Consumer Watchdog seems to have its legal terms confused, “unfair and deceptive trade practices,” or unfair competition, exists between businesses. Ballantine’s law dictionary defines it as “acts done or practices employed for the purposes of pirating the trade of a competitor,” such as by using or simulating their trademarks, and thus such practices “induce the purchase of goods under a false impression as to their origin or ownership.” Google is definitely not trying to pass off its services as another search engine, and merely withholding goods or services from one market segment has never been considered as unfair competition. In fact, geographic market segmentation is traditionally the first step to international marketing and helps both businesses and local economies profit.
Of course, it remains to be seen what the FTC has to say about the whole thing, but this author doubts that the strong traditions of freedom of speech and freedom of the press embodied in the First Amendment will allow it.