A Google advisory panel has concluded that people have the right to be forgotten — or, more accurately, a right not to be mentioned in search anymore. But it contends that right should only apply in the European Union, not across Google's wider global search.
The report is latest in an ongoing debate between Google and the European Union (EU) over an individual's right to remove or delist certain information. Last May, the European Court of Justice Ruling ordered Google to remove links to personal information from search results leading to personal information on an individual in Spain.
The ruling has been widely, albeit inaccurately, referred to as creating a “Right to be Forgotten."
In the aftermath of the ruling, Google convened an independent panel to advise it on performing "the balancing act between an individual’s right to privacy and the public’s interest in access to information." The findings are based in part on a series of public consultations across Europe.
Team of 8
The Advisory Council included eight data management heavy-hitters, including Luciano Floridi, Professor of Philosophy and Ethics of Information at the University of Oxford; Sylvie Kauffman, Editorial Director, Le Monde; Lidia Kolucka-Zuk, Director of the Trust for Civil Society in Central and Eastern Europe; Frank La Rue, UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression; Sabine Leutheusser-Schnarrenberger, former Federal Minister of Justice in Germany; José-Luis Piñar, Professor of Law at Universidad CEU and former Director of the Spanish Data Protection Agency (AEPD); Peggy Valcke, Professor of Law at University of Leuven; and Jimmy Wales, Founder and Chair Emeritus, Board of Trustees, Wikimedia Foundation.
The panel, in a 44-page report, concludes that delisting should only be applied to Google’s sub-domains – notably the local versions of Google like Google.fr or Goolge.co.uk — and should not be universally applied across Goolge.com.
The report explains that implementation of last year's ruling does not have the effect of “forgetting” information. Rather, it requires Google to remove links returned in search results based on an individual’s name when those results are “inadequate, irrelevant or no longer relevant or excessive.”
Google is not required to remove those results if there is an overriding public interest in them 'for particular reasons, such as the role played by the data subject in public life.'"
However, in practical terms, the conclusion seems to border on little more than a publicity stunt. This article, for example, is being written in France, but being researched through Goolge.com, on which all "offending" links — even those that might ultimately be removed from Google sites in the EU — can appear.
In addition, it's worth noting that the ruling does not require the removal of the information in question from the web: it only requires the removal of links to that information in Google searches.
It is hard to know exactly how much independence the Advisory Council actually had, and how much direct input Google had into the findings. Keep in mind that Eric Schmidt, Chairman of Google, and David Drummond, Chief Legal Officer of Google, convened the advisory panel.
The panel members claim the conclusions are their own and that they were paid nothing for their efforts except expenses. The conclusions were also “majority” rather than unanimous, with at least one dissenting voice from Leutheusser-Schnarrenberger, who noted:
According to my opinion the removal request comprises all domains and must not be limited to EU-domains. This is the only way to implement the Court’s ruling, which implies a complete and effective protection of data subject’s rights. The Internet is global, the protection of the user’s rights must also be global. Any circumvention of these rights must be prevented. Since EU residents are able to research globally the EU is authorized to decide that the search engine has to delete all the links globally.
Her thoughts reflect the concerns of many privacy rights organizations in Europe that have been vocal about the web and the availability of information on it.
While there are many variations across Europe, there seems to be general agreement that the right of an individual to make a fresh start will not be respected unless delisting is universally applied:
The ruling is based on the enormous possibilities of spreading information by search engines to millions of people without any restriction regarding time. The violation of personal data reaches a new dimension and intensity. It cannot be compared to publications of local newspapers, which have approximately 10,000 – 50,000 issues. Users should get a second chance after an economic failure (insolvency) or after a conviction,” Leutheusser-Schnarrenberger argues in the report.
The panel outlined five proposals for implementation of delisting, including:
- The search engine should make the removal request form easily accessible to data subjects
- Publishers should receive notice of any delisting to protect media and its right to publish information considered to be in the public interest.
- Publishers should be allowed challenge delisting decisions before their local courts
- The delisting practice should continue to be applied in Europe only
- Delisting requests should not be obvious to those who have carried out searches around the person or subject in question, while decisions about delisting should be transparent
This is only the start to what looks like a prolonged battle on privacy and public data access. Keep in mind that Google’s Advisory Council is just that — advisory. It has no legal clout and no power to make law.
As of today, the European Union has yet to respond to the report, but will undoubtedly do so in the very near future. Either way, it seems inevitable that Google and the EU will clash again given the slim chance of either coming around to the other’s way of thinking on this.