How Can the ECJ’s ‘Right to be Forgotten’ Rule be Fairly Implemented?

Google has attracted plenty of criticism in its application of the new ‘right to be forgotten’ rules following the recent European Court of Justice (ECJ) ruling.

The rules make clear that EU citizens who are not ‘in the public life’ have the right to request that internet links, resulting from name-based searches which are ‘inadequate or irrelevant’, or no longer relevant, be removed from search results.

This does not change the status of the webpage itself, which remains online, but merely blocks access from European search engines such as google.co.uk.

Google deals with 90% of Europe’s online searches and the company now receives 1,000 requests to take down search links per day. But what makes a particular takedown decision by Google fair or unfair?

Media Companies Criticise Google’s Decision Making

Although news organisations have been under constant attack recently regarding the ethics of their own practices, they are subjecting Google’s decision making to a healthy degree of scrutiny. Both the Guardian and Daily Mail newspapers, as well as the BBC, have complained that Google is being too hasty in its removal of search links.

In particular, the Guardian has stressed its concern over the systematic approach with which Google seems to be taking down links. Referencing the requirement that decisions to remove links are made on a case-by-case basis, the Guardian was keen to warn of censorship by the back door and suggested that Google should be more transparent in regard to the criteria to which it uses to make decisions.

From a legal perspective, it is notable that the team recently hired by Google to vet requests for search link takedown is made up predominantly of supervised paralegals and not qualified solicitors.

The Daily Mail offered a simple criticism of Google’s practices, Martin Clarke (the Mail Online’s publisher) stated that the removal of links was equivalent to “going into libraries and burning books you don’t like”.

Julia Prowles, a Cambridge legal academic, echoed the Guardian’s call for transparency when calling for the publishing of information on how Google was prioritising complaints. In particular, she called for information on how its internal decision-makers are trained and the principles they apply.

The BBC’s Robert Peston complained that Google had cast him “into oblivion”, writing that he was confused as to how a removed link to a blog he wrote on a former boss of the investment bank Merrill Lynch was not in the public interest.

An Unenviable Task: Judge, Jury and Executioner

Google have responded to these criticisms by stating that these are merely ‘new and evolving’ processes, and that it will continue to listen to feedback. Most recently, Google has begun placing disclaimers on name-based searches that certain results have been removed.

One criticism Google will be keen to acknowledge is Wikipedia founder Jimmy Wales’s: a man who describes the EU’s new privacy rules as “deeply immoral”. Indeed, Wikipedia itself has begun naming any removed search links to the encyclopaedia via a dedicated page on the site entitled “Notices received from search engines”. Such reaction to the takedown of search results may render the original removal requests fruitless or even counter-productive.

Comment

Although the ECJ’s decision set the current developments of the ‘right to be forgotten’ in motion, little practical guidance has been offered by legislators or the courts. This has left the development of an important area of public life, freedom of expression and censorship on the internet, mainly in the hands of a single US corporation.

Businesses unsure about their obligations regarding online publishing in the current environment should contact Peter Gourri today by email PGourri@rollingsons.co.uk or telephone 0207 611 4848.