In May 2014, the Court of Justice of the European Union (CJEU) ruled in the case of Google Spain SL, Google, Inc. v. Agencia Española de Protección de Datos (AEPD), Mario Costeja González that individuals have the right to ask that links to information about them be removed from web search results when users query a person by name. In the past few months, both Russia and China have initiated similar legislation. Recently, legal scholars have asserted that the decision is bound to be applied to internet hosting services as well, a possibility that has many wondering about the implications for free speech and the integrity of the historical record.
Although it has been popularly called the “right to be forgotten,” the CJEU ruling allows anyone to ask to have information removed; it is not a guarantee that the removal will happen. The court provided no specifics on how these requests should be handled, despite the fact that search engines regularly deal with similar issues such as copyright infringement removal (e.g., Digital Millennium Copyright Act) takedown requests. The European Commission published an excellent overview of the court’s decision.
The Industry Reacts to the Ruling
Within a month of the decision, Google had created a form for European Union (EU) individuals to request takedown of URLs that include information they believe misrepresents or maligns them. Removals only happen for EU member countries’ versions of Google, and there is disclosure in Google’s results when listings are dropped. The Google form promises that the company “will balance the privacy rights of the individual with the public’s interest to know and the right to distribute information. When evaluating your request, we will look at whether the results include outdated information about you, as well as whether there’s a public interest in the information—for example, we may decline to remove certain information about financial scams, professional malpractice, criminal convictions, or public conduct of government officials.” Soon, other search engines, including Bing and Yahoo, followed suit in setting up systems to allow for these requests.
The Wikimedia Foundation has also sought to make information on its websites more transparent by recently releasing its third transparency report, which states:
In August 2014, we published our first transparency report, which detailed the number of requests we received to disclose user data or alter or remove content from the Wikimedia projects between July 2012 and June 2014. We updated the report in April 2015 with new data, real-life examples of the types of requests we receive, and additional categories such as ‘voluntary disclosures’ and ‘right to be forgotten’ requests. We are happy to continue this tradition with our latest update, covering January to June 2015. During this time, we received 234 alteration or takedown requests and 23 user data requests, none of which we granted.
Etsy is another website that has joined the effort to increase transparency, with a recent report that provides “an in-depth look at how we integrate Etsy’s company values, responsibility to our members and legal obligations.” Etsy’s general counsel Jordan Breslow notes that “by making it easy to open a shop, and allowing for ample freedom of expression, Etsy is providing the most opportunity possible for creative pursuits, entrepreneurship and community.” He continues:
The open platform has also led to a diverse representation of aesthetics, trends, categories, price points, production methods, and more. But we recognize that with this open structure comes some abuse—from those who simply misunderstand our policies or those who purposefully set out to exploit them. This includes those that list items that violate third party intellectual property or that violate our site policies. We dedicate substantial resources to addressing these challenges, including teams ranging from legal, to security, to risk engineering, to marketplace integrity.
As one outcome of the EU suit, we can expect that greater transparency will become more of an industry norm in the future.
In the journal Human Rights Law Review, author Eleni Frantziou reflects on both the positive and negative implications of the decision:
[T]he judgment signals an important step forward in thinking about the way in which the right to privacy can be protected in the Internet era, as well as in recognising [sic] the role of private actors in the application of fundamental rights standards. On the other hand though, the judgment appears to dismiss important considerations that can conflict with the right to be forgotten, such as the rights to freedom of expression and access to information, thus raising serious doubts as to whether this development will signal a positive step in the overall protection of fundamental rights.
A Tangled Web
Daphne Keller (a former Google employee) writes in a blog post for The Center for Internet and Society at Stanford Law School that the ruling represents an ill wind for hosting services such as “the Twitters, Facebooks and YouTubes of the world—not to mention European hosting services like DailyMotion, local political discussion forums, and blogs or newspapers with user comment sections. And it matters to Internet users, because the way the ‘Right To Be Forgotten’ plays out for these services will have a very real effect on our ability to speak freely and find information online.” Keller continues:
Compelling hosts to follow [the] Costeja [decision] would make it dangerously easy to silence amateur journalists, video-makers, bloggers and others who rely on hosting platforms to reach an audience. Notice-and-takedown systems already create a risk of over-removal by Internet platforms adopting an ‘if in doubt, take it down’ standard—appeasing the person who demands content removal is easy; leaving content up is risky; analyzing the law to make the right call is expensive. Combine this existing dynamic with Costeja’s new and notoriously hard-to-understand removal guidance, and you have a recipe for easy removal of legal content.
In November 2014, “The European Union’s privacy watchdogs agreed on a set of guidelines … to help them implement a ruling from Europe’s supreme court that gives people the right to ask search engines to remove personal information that is ‘inadequate, irrelevant or no longer relevant,’” according to Business Insider.
In the first year after the ruling, Google reportedly received more than 250,000 data removal requests (and approved 35% of them). A May 2015 Wall Street Journal article describes the search engine’s decisions about removal requests as being handled by “a group of senior lawyers, engineers and product managers” as part of what the newspaper calls a “potentially precedent-setting” routine.
Slate reports that Google “has decided internally that public figures get less leeway than ordinary people. Results related to crimes that were committed a long time ago, and have therefore been removed from criminal records, are more likely to be taken down. But the results aren’t removed from Google altogether. Over the last year, Google has pulled links down from Google.fr and Google.co.uk—but not Google.com. This means that links removed from domains in Europe can be found through its U.S. site.”
In an interesting move, many websites have begun maintaining listings of URLs that have been deleted from Google or other search engines, including the BBC and the The Telegraph. In defending this move, BBC managing editor Neil McIntosh notes, “We think it is important that those with an interest in the ‘right to be forgotten’ can ascertain which articles have been affected by the ruling. We hope it will contribute to the debate about this issue. We also think the integrity of the BBC’s online archive is important and, although the pages concerned remain published on BBC Online, removal from Google searches makes parts of that archive harder to find.”