Google’s recent take-down notice to the BBC that it would exclude certain search results for a 7-year old BBC blog post appears to have caused some confusion over the operation of the EU’s ‘right to be forgotten’ rules.
Despite the avalanche of commentary, online publishers are likely to find that uncertainty over the new right to be forgotten rules will continue for some time while the practicalities of the recent European Court of Justice (ECJ) legal ruling take shape.
Burying the Financial Crisis
According to the ECJ’s decision in Google Spain v AEPD and Mario Costeja Gonzalez (interpreting Directive 95/46/EC), EU residents who aren’t in the public spotlight may request the removal of searches of their name which they consider outdated and/or prejudicial or ‘excessive’.
The BBC’s original blog post subject was that of the then highly scrutinised former Merrill Lynch CEO, Stanley O'Neal, a person of still considerable renown in the financial world.
Therefore, it appeared that Google could not have complied with the EU Directive if it had taken down the post on his instruction.
How Could the Takedown be Justified?
The author of the article, Robert Peston, proffered the possibility that the article may have been taken down as a result of one of the public comments seen below the article’s content. Indeed, any one of the thirteen names authoring some of the comments, provided they referred to real EU residents, may have successfully requested the take-down of the blog.
However, Google notified the BBC of the take-down without specifying the name or names from whose search results the blog would be removed which raised questions as to the transparency of the process.
This complication demonstrates the potential risk that freedom of the press may be curtailed by effectively allowing anonymous requests for take-downs while the consequent exclusion(s) are made undetectable on the face of Google search results. This in turn raises questions over the justification for particular takedowns.
Are there Wider Implications?
The takedowns are not just limited to the BBC; other publishers such as The Guardian have also received notifications from Google with regard to their articles being removed from certain searches and Google’s results.
The issue, however, is confined to Europe. Anyone searching through google.com will be able to see any excluded search results, unlike a search for the same keyword(s) via google.co.uk. From this perspective the implications of the new rules seem to be superfluous and only limited by the extent to which the searcher is informed of the rules themselves.
Furthermore, there has been sufficient backlash against the rules by media outlets to argue that a successful removal might actually be counterproductive, insofar as the publisher whose article was subject to the take-down may go on to write a new article on the take-down itself, thereby attracting more curious new readers. There are already countless examples of this.
For specialist advice regarding the right to be forgotten contact Peter Gourri today by email PGourri@rollingsons.co.uk or telephone 0207 611 4848.