RtbF: Whose law is it anyway?

October 1, 2015

Not so long ago, the Internet was routinely described as a new Wild West: a gold-rich land of opportunity, but also beyond the hand of the law. But now, hot on the heels of the Silicon Valley whiz-kids and tech start-ups, a new ‘gold rush’ has begun: lock up your daughters, the lawyers are in town and seeking to bring the Internet giant Google into line.

But what law applies online and what is the territorial scope of domestic law when a website based in one jurisdiction can be accessed by users around the globe in just one click? Differing attitudes towards freedom of speech, privacy, data protection and defamation have created havoc for Internet giants whose reach spans the globe, and many of whom have a strong and US-influenced culture which places importance on the free and unfettered dissemination of information in line with the First Amendment.

Google, by virtue both of its market-dominance and also its historic reluctance to submit to non-US law, has come under particular pressure from Europe recently, with a plethora of threatened and ongoing actions ranging from privacy to competition law.  But none has been quite so high-profile as the so-called ‘Right to be Forgotten’, prompted by an CJEU data protection ruling in May 2014, under which individuals can ask search engines to delink results on their name in certain circumstances, for example, where the results include personal data about that individual which is ‘irrelevant’, ‘out of date’ or ‘inaccurate’.  

Controversial from the start, the debate raging over the Right to be Forgotten has heated up in recent months following the decision by the French data protection authority, the CNIL, to hand down a notice requiring Google to apply the Right to be Forgotten on all of its domain names, including Google.com. The CNIL considers that by only applying the Right to be Forgotten to certain (specifically European) domains, but allowing users in France and elsewhere to access unfiltered results via Google.com, the Right to be Forgotten is not being enforced effectively.  Although Google informally appealed this decision, the CNIL has rejected the appeal, prompting further cries of censorship. As SCL’s Laurence Eastham asked in his recent blog post, CNIL and Google: Stretching Boundaries?, does the CNIL’s decision – as many commentators have suggested – constitute a bid to impose French data protection law on web search results globally?

But is it really France who should come under criticism for launching a neo-colonial battle for control of the worldwide web? Is it really Europe that is calling the legal shots that reverberate around the web? Scratch behind the surface and a different picture starts to emerge.

Google and other search engines receive hundreds of thousands of removal requests – and not only for the Right to be Forgotten.  Between the launch of Google’s Right to be Forgotten process on 29 May 2014 and the writing of this article, Google has processed 323,095 Right to be Forgotten requests seeking to remove 1,146,707 URLs (see http://www.google.com/transparencyreport/removals/europeprivacy/). Although this may sound like a fair few, these figures pale against the number of copyright removal requests made.  Last month alone Google received requests for 51,480,651 URLs to be removed on copyright grounds (which, if representative of the monthly average, would indicate an annual figure of approximately 617,767,812) and, according to data collected between July and December 2011, the search engine removes 97% of search results specified in copyright removal requests.  In contrast, a measly 41.8% of the URLs requested to be delinked from search results have been removed under the Right to be Forgotten.

Removing search results for whatever reason is arguably a form of censorship (whether justified or otherwise).  And so how does Google assess copyright requests and what law does it apply? Well, perhaps unsurprisingly, Google complies with Digital Millennium Copyright Act or DMCA, a US law which allows search engines like Google to avoid liability for copyright damages where it removes or disables access to allegedly infringing material upon a request that meets certain requirements. One of the FAQs in Google’s transparency report asks: ‘Do you only comply with the DMCA? What about other copyright laws?‘ The response is telling: ‘It is our policy to respond to clear and specific notices of alleged copyright infringement. The form of notice we specify in our web form is consistent with the DMCA and provides a simple and efficient mechanism for copyright owners from countries around the world.’ 

So, Google is more than happy to ‘censor’ search results where this affords it protection against liability under US law and will remove results where there is a clear and specific notice of alleged copyright breach.  While aggrieved webmasters are able to submit a counter-notification form objecting to any removal, the high removal rate – as well as Google’s stated policy – would appear to suggest that where an allegation of copyright infringement is made the material will, in all but the most outrageous of requests, be removed.  For Right to be Forgotten requests, however, the burden of proof is firmly on the other foot and weighs heavily on the complainant who has to establish that the criteria have been met (so the complainant must show, for example, that a statement is inaccurate or irrelevant).

More fundamentally, however, why should it be acceptable for Google to remove URLs from search results worldwide in compliance with US but not French law? In response to the CNIL’s rejection of its appeal, a Google spokesman stated that: ‘…as a matter of principle, we respectfully disagree with the idea that one national data protection authority can assert global authority to control the content that people can access around the world.’ But can it really be said that by assessing any copyright removal requests in the light of the DMCA alone Google is doing anything other than using US law as a global authority under which to control the content people see around the globe and, in doing so, imposing US law internationally? 

The battle for online law and order continues apace, but should the Internet really be treated so differently from those of us operating away from cyber space?  By choosing to conduct its business on a global scale, Google has signed up to respect and comply with the various legal frameworks in all of the jurisdictions in which it operates, as any business trading and operating internationally would be required to do. There can be no doubt that Google has the resources to apply the law of the territories in which it operates.  Could it simply be that Google is able to pick and choose which law to apply, and where, because for all intents and purposes it is the biggest sheriff in town?

Caroline Thompson is an associate in Withers Media & Reputation team: http://www.withersworldwide.com/