It is five months since the ruling in Google Spain v AEPD and Mario Costeja Gonzalez and, as of 13 November 2014, Google had received 166,396 requests for URL removals and has evaluated 562,376 URLs to decide whether to whether to remove them from its search engine. 21,470 of the requests have come from the UK relating to 72,195 URL removals.
Google states that in considering a request it “must consider the rights of the individual as well as public interest in the content”. Facebook is the website which has had the most requests for URL removals which have been granted by Google (with 3797 removed as at 13 November 2014), followed by profileengine.com (with 3707 removals).
Most of the decisions Google cites as examples are relatively clear cut: For example, multiple requests from a single individual from Italy who asked for the removal of 20 links to recent articles about his arrest for financial crimes committed in a professional capacity were not removed; and a public official in the UK who requested removal of a link to a student organisation’s petition demanding his removal was again not removed from the search results.
However, there have also been more complex cases often concerning information cited in news reports: requests for removal of a report of a violent crime committed by someone later acquitted because of mental disability (which was refused); an article in a local paper about a teenager who years ago injured a passenger while driving drunk (which was granted); and the name on the membership list of a far-right party of someone who no longer holds such views (which was also granted).
Interestingly, it appears that Google do take into account whether convictions referred to are spent; they cite an example of a individual from the UK who requested removal to a link to a news summary of a local magistrates decision that included the man’s guilty verdict. As this was now spent under the UK Rehabilitation of Offenders Act the link was removed from the search results under his name.
Google set outs these details in its ‘European privacy request for search removal’ Transparency Report. As the title of the document makes clear, this only relates to removal of ULRs that are accessible via the European Google search engine, such as ‘co.uk’; Google is not removing them search results that are displayed on its ‘.com’ site. Its position is that the removal process is under European data protection laws and does not apply to, say, the US. Critics point to the fact that territorial boundaries don’t apply to the Internet and that, because users can get access to Google.com from Europe, this makes a mockery of the whole process.
The decision’s reasoning would apply to other search engines – and potentially search engines on internal websites such as the BBC. However Google is responsible for more than 90% of Europe’s Internet searches and so the impact of the judgment is very immediate.
Google has also been the subject of legal action in a number of jurisdictions following the CJEU decision. In Hegglin v Person(s )Unknown & Google [2014] EWHC 2808 Mr Hegglin, a businessman with close connections to the UK, is asking the court for an injunction pursuant to the Data Protection Act 1998 and the European Directive 95/46/EC to stop links from an anonymous individual who is posting highly defamatory and abusive untrue allegations suggesting (for example) that he is a murderer, a Nazi and a paedophile. The trial is fixed for 24 November 2014.
In Max Mosley v Google the claimant is suing Google for making available the images and video that were ruled to be a misuse of his privacy in his 2008 trial against News Group Newspapers. A hearing is set down for January 2015.
In a case heard by the Court of Amsterdam the owner of an escort agency who had been convicted and sentenced to six years’ imprisonment in 2012 for ‘attempted incitement of contract killing’ requested that Google remove links to online publications about his crimes. Google complied in part but not in full and he sued in relation to the remaining search results. The Dutch Court rejected the application stating:
“The [Google Spain] judgment does not intend to protect individuals against all negative communications on the Internet, but only against ‘being pursued’ for a long time by ‘irrelevant’, ‘excessive’ or ‘unnecessarily defamatory’ expressions.
The judgment is only available in Dutch but a summary of it in an Inforrm blog by Joran Spauwen and Jens van den Brink can be found here
In Israel the Tel Aviv Court have refused to follow the Google Spain ruling. A lawyer called Ami Savir, whose name when searched using Google resulted in a link to “Lawyer convicted in five different cases”, brought proceedings against Google to have the link removed. Mr Savir had been the lawyer representing the Israel Bar Association in disciplinary measures it took against an attorney Yoram Arbib Leonalo, who was convicted in five separate cases. The Israeli court website published the verdicts against Arbib and set the page code to feature the headline “Lawyer convicted in five different cases”.
The Court accepted Google’s argument that making it responsible for deciding whether the statement was defamatory and ought to be removed would make Google into a ‘super-censor’ with the power to prevent access to harmless information. It held that
“unless specific circumstances justify public interest in the information”… “Google cannot be unconditionally directed to remove search results any time a person asks them to take down something they don’t like.”
Finally, in a decision of the TGI dated 16 September 2014, which is only available in French, the claimants, Mr and Mrs X and Mr Y requested Google to remove certain links relating to them on the ground that they were defamatory and in relation to which the author of the defamatory comments had lost a hearing before ‘le tribunal correctionnel’ on 13 March 2014. Google sought to have the action declared inadmissible but failed. The court ordered that certain links should be removed by a certain date and Google should be fined €1,000 per day for every day if this was not done. Google also failed to persuade the court that the injunction imposed upon it should be limited to Google.fr, as the Court noted that it hadn’t shown it was impossible to connect to other Google search engines while in France:
“Que c’est vainement que Google France sollicite à titre infiniment subsidiaire que l’injonction soit limitée aux seuls liens avec Google.fr, alors qu’il n’établit pas l’impossibilité de se connecter depuis le territoire français en utilisant les autres terminaisons du moteur de recherche google”
The scale and speed of the removal process being undertaken by Google makes it clear that the effects of the CJEU ruling are wide reaching. Depending on ones perspective, this is either a useful way to protect individuals from the permanence of the World Wide Web, or it’s a worrying assault on the ability to freely obtain information, particularly in a society where search engines have become the primary means of doing so. There are concerns about how the ‘right to be forgotten’ may impact on public discourse about political issues; that it may be used by people in positions of power to manipulate press coverage; and that ‘outdated’ information about an individual which is removed in part because they are not a public figure may in due course become very relevant if that individual immediately goes on to seek public office. There are undoubtedly some issues that need to be resolved, not least the artificial distinction between .com and .co.uk domains but perhaps more concerning is the fact that Google have, possibly unwillingly, become the arbiter of what stays and what gets deleted. This has led to calls for editors to be involved to enable them to add local context to help inform the decision. One thing is clear, this is only the start of this process and the full impact of the Google ruling on search engines (both in Europe and in the rest of the World) remains to be seen. One thing is sure – it is going to be a very controversial and very expensive.
Sara Mansoori and Eloise Le Santo are barristers at Matrix Chambers
Reblogged this on sdbast.
It would be interesting to know who is asking Google to remove references