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Google loses ground in fight against Europe's 'right to be forgotten'

The search giant is campaigning against a ruling that gives Europeans the ability to hide their histories on the Internet. But it’s facing a Continent determined to reassert its right to privacy.

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    In October, Google executive chairman Eric Schmidt traveled to Berlin where he debated the merits of Europe's right to be forgotten ruling, which has compelled the tech giant to remove tens of thousands of links from search results.
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Once every 90 seconds, Google Inc. receives an appeal from someone seeking to keep part of their personal history from showing up on an Internet search.

In the so-called “right to be forgotten” decision earlier this year, the European Court of Justice ruled that search engines with European domains – such as Google, Bing, and Yahoo – must allow EU and European Economic Area citizens the ability to remove links to personal information that is “inadequate, irrelevant, or no longer relevant."

Since then, Google has fielded requests that range from a Swiss financier who sought to erase links referring to his arrest for various financial crimes and subsequent conviction to an Italian woman who said she was haunted by articles about her husband’s murder years ago that continued to appear when she searched her name.

Some 171,000 such requests have been sent to Google. It doesn’t grant every wish to disappear from the Web, and since the ruling it has vigorously debated the decision, with Google executives speaking out across Europe against the vagueness of the ruling.

But it’s an uphill battle. The right to be forgotten came about as Europeans seethed over revelations of National Security Agency surveillance practices in Europe, an issue that has brought about a reassessment of what privacy means in the digital age and proposals for tough new laws limiting online data collection and how companies use the information they gather on Web users.

Until recently, Google thought the ruling would affect only its European websites. But last week a Paris court slapped its French division with a 1,000 euro ($1,252) daily fine should its American arm fail to delink contested materials from the global network.

Dan Shefet, a Danish lawyer employed in France, argued that a defamatory article about his firm could spread to all Google websites, not just those with the .fr suffix. Google yanked the results in France, but not from results elsewhere in the world.

This all points to a new normal for the way global Internet companies operate in Europe. Indeed, says Adam Holland, project coordinator at the Berkman Center for Internet and Society at Harvard Law School, the right to be forgotten reflects starkly different notions of privacy in Europe and the US.

“In the US, we value freedom of speech and freedom of info more highly than necessarily moral rights to that information,” says Mr. Holland. “It is a moral issue, not necessarily a legislative issue. The EU places a higher precedent on the rights of the person.”

In contrast to the French court decision, a California state court ruled last week that the way Google arranges its search results is considered protected speech under the First Amendment, which also has long been the company’s own stance. Yet that could soon be challenged if the right to be forgotten stretches out of Europe. Next week, European data-protection regulators will issue guidelines about the "territoriality" of the ruling, discussing if removals should apply to Google domains outside of Europe. 

Google's burden

More than any other technology company in the world, Google will shoulder the responsibility for giving Europeans their newfound right to rewrite their histories on the Web. Google comprises 90 percent of search engine traffic in Europe.

Because of this, Google executives went on a goodwill tour throughout major European capitals in October and November, bringing together Internet experts and entrepreneurs, including staunch right to be forgotten critic and Wikipedia cofounder Jimmy Wales.

“Google has been uncomfortable with this decision for many reasons,” said Eric Schmidt, Google’s executive chairman, at one of the heated hearings in Berlin in October, which stretched on for five hours. “The first being that the details [of what is irrelevant or no longer relevant] is somewhat ambiguous, and the second is because it means hiring humans, and we don’t know how many humans we have to hire. We don’t know the extent of the problem.”

Furthermore, according to a member of Google’s entourage, removing the links to, rather than the source of, the content itself, does not remove information. It only makes it more difficult to locate, says Dr. Luciano Floridi, a professor of philosophy and ethics of information at Oxford University.

“The information remains there for anyone who wants to find it by added means,” says Dr. Floridi, pointing out that currently anyone can simply use the core google.com domain to access the links, rather than Europe-specific domains such as Google.uk or Google.de. “It’s almost like taking aspirin when you have a bad toothache. That can help momentarily but the problem’s there. You need to go to the dentist.”

Rewriting Internet history

Europe’s right to be forgotten decision came about as the result of two small notices that appeared 16 years ago in a Spanish newspaper. In 1998, La Vanguardia ran a story stating that property owned by a Spanish lawyer, Mario Costeja González, would be auctioned off to pay his debts. Mr. González cleared up his debts, but the link to the old article remained on the Web.

That is until the European Court of Justice, which operates as a Supreme Court of the European Union, ruled that La Vanguardia could leave the article on its website but that Google must stop linking to it. That ruling set in motion the torrent of others who want to wrest control over their online personas. As of mid-November, Google had received more than 171,000 requests to take down links to more than 588,000 websites. It has denied 58 percent of those appeals as of press time, the company stated in a data page it updates in real time

One request it green-lighted this week belonged to a British journalist who asked that a link to her home address be removed. It had lingered on the Web since her brother set up a company and used it, not knowing that it would permanently remain on the governmental Companies House website even when the business was dissolved.

"As a journalist, when you write an article, someone can get your email from Googling you,” says the London resident, who asked to remain anonymous. “In my case, they could also find my address, which isn't good especially if I'd written something to [upset] them. I wouldn’t want my family to receive hate mail or threats, especially with kids here.”

Private vs. public interest 

To decide if a link should be removed or not, Google and other search companies rely on teams of legal professionals who review submissions. The search engines factor in whether the person is a private or public figure — celebrities always belonging to the latter category —  whether the information is linked to political speech or criminal charges and if the information comes from “a reputable news source.”

In about 15 percent of cases, Google has asked for more information from a requester when they feel the rationale for deletion provided is too vague, says a company spokesperson. Other search engines are largely remaining mum about their internal struggles or number of requests they have received.

“We have begun processing requests to block specific privacy-related search results through a process that balances individual privacy interests, the public interest in free expression and the free availability of information,” says a Bing spokesperson, declining further comment.

But now search engines are left questioning if the France ruling will set a precedent for how far this public interest will extend. It’s difficult to tell whether other counties will follow suit and enforce such a strict reading of the right to be forgotten decision. So far, the largest number of requests to have links removed has originated from France, followed by Germany. Both have some of the toughest privacy laws in Europe.

The tricky part is determining what’s irrelevant or inadequate when considering a right to be forgotten request. While it’s easy to say whether information is accurate or not, “relevance depends on the questions you’re asking and the reasons you’re asking them,” says Dr. Floridi, the Oxford professor.

For example, yesterday’s train table may not be relevant to most commuters, says Floridi, but it would be very relevant for investigators trying to figure out when terrorists used a train. Some news articles, he says, may be relevant to some readers and not others, especially when they involve multiple countries: A 2002 New York Times piece about a US court decision to shut down three British-owned, US registered websites that sold $1 million worth of fraudulent URLs was removed after the case was settled.

Global impact of 'right to be forgotten'

Whether or not the right to be forgotten rule extends beyond Europe, it will still have a global impact, says Katherine Maher, chief communication officer of the Wikimedia Foundation. So far there have been five separate requests affecting more than 50 URLs to Wikipedia project pages.

“We expect the details of the implementation to continue to evolve, but it's important to remember that the Internet is one interconnected information ecosystem,” says Ms. Maher. “The removal of accurate results in Europe will invariably have an impact on the way information is available to the whole world.”

The ruling already has supporters in the US. One of them is American TV journalist Terra Hall. In 2010 she reacted angrily to an interview subject who she said made racist comments to her. When she confronted him in what she thought was a private voicemail, he published it in a blog.It continues to show up in Google search results after typing in her name.

“I would love more than anything with the click of a button to just have that completely disappear,” says Ms. Hall, describing potential employers who say they are impressed with her resume, but can’t hire her as an on-air personality due to the recording. “In the past it would have been ‘he-said, she-said.’ Now it’s written. It’s online. It’s permanent.”

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