Google’s ECJ smackdown

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15 May 2014 | 0

The case of one man’s tax settlement is about to cost Google millions and force search engines – should they want to do business in the EU – to put simple methods in place for the deletion of links to information about citizens’ private affairs.

The European Court of Justice this week struck a second blow for privacy rights with a ruling that recognises the status of Google – and search engines in general – as ‘data controllers’ bound to the norms of data protection in the countries they are based in. Google’s contention that it is not a publisher but an entity that indexes existing publicly available information remains unchanged but its that very indexing and the returning of search results that defines Google as a ‘data controller’ with the ability to remove access to Web pages if it wishes.

This week’s successful case was brought against Google by AEPD (Agencia Española de Protección de Datatos) on behalf of Mario Costeja Gonzalez. The AEPD claimed that its client’s reputation was being harmed after a news story about him posted to a newspaper website in the late 1990s was doing him reputational harm years after it had ceased being relevant as it kept popping up at the top of Google search results. The AEPD argued that Gonzalez had a ‘right to be forgotten’ and could compel Google to remove links to the article (though it would still be available on the newpaper’s website). The court agreed that the links should be removed and – in certain instances – that this right be extended to any private individual.

Legally, this case is a done deal. The European Court of Justice is the highest in the EU and applies to all member states. There is nowhere left for Google to plead its case and so it must work within this new understanding of its position.

Combine this results with the ECJ’s April ruling striking down the principles of EU dat aretention law and you have a situation where EU citizens unprecedented control over the portability, security, and privacy of information stored about them online and in databases.

The ECJ’s rulings present search engines with two problems: where to draw the line between content in that is or is not in the public interest and how to implement a scalable system for dealing with takedown requests.

Caution advised
The first question has an easy answer: err on the side of the complainant. Sure Google can choose to fight any takedown request it gets but any individual battle would have to be played out in the Irish courts – where Google has its European base. A cost benefit analysis based on the commercial value of searches would provide a metric on what cases to pursue. Barack Obama is a far more valuable search team than ‘Joe Bloggs who runs a shop around the corner’ so it makes no commercial sense to defend a takedown notice. Should the White House decide that President Obama’s Web presence needs a spring clean, the cost of defending Google’s position exceeds the losses a legal battle would incur, not to mention the degredation in service Google would suffer.

The second problem, putting in place a scalable solution for takedown notices, will be familiar to Google from its experience of dealing with record labels and rights bodies on YouTube. The hard part is coming up with a way to make customer service more accessible and a process of link submission easy to do. A form page with a space to submit an ‘offending’ URL for review would suffice.

Despite the decision, Google shouldn’t be worried about receiving millions of takedown requests. In some cases getting into a legal squabble can attract more attention than it tries to suppress – the so-called ‘Streisand effect’. You can also be sure someone will develop a publicly available listing of takedown notices. Sometimes it is better to bury bad coverage with good, a tactic often used by reputation management companies. Even then, who cares enough to scrub their digital history if they have nothing to be ashamed of in the first place? We’re not on the verge of armageddon or wholesale censorship, just inconvenience for a multi-billion dollar company.

Finally – and this is a point raised by solicitor Simon McGarr – this is good news for newspapers and private archives. Google’s position as a processor and controller of data absolves itself any responsibility for publishing. This adds value to paywalled media outlets who do are not indexed on Google.

If Google wants to keep its business in the EU it’s going to have to realise the doctrine of ‘information wants to be free’ is a fallacy. People want to be free. It’s an inconvenient truth. Many are.

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