It may feel like a decade since we had that RtbF judgment in ‘Google Spain’ but it has been just six months. It has been all too easy to be distracted by the wide-ranging and sometimes overy philosohical debates on the topic. Andres Guadamuz takes a very welcome look at the judgment’s application in practice. It is essential reading for anyone contemplating attending the London session of the Google Advisory Council.
Back when the Court of Justice of the European Union decided the case of Google Spain, one of my first comments was that we needed some time to have a look at the way the decision is going to be applied and implemented. It has been just under six months since the ruling, and we are starting to get a fuller picture of who wants to make use of the right to be forgotten, and what may be the implications for the future.
The first development worthy of mention is that a national court has used Google Spain to answer a request to remove links to potentially damaging information. A court in the Netherlands has denied a request by the owner of an escort agency who was convicted for attempted incitement of arranging a contract killing, a matter which is currently under appeal (excellent report of the ruling here). The subject wanted links to the reports of the crime removed from search results, but the Dutch court refused the request with a very interesting analysis of the interaction between privacy and freedom of expression. The court commented:
"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."
I thoroughly agree with this interpretation of Google Spain, the intention was always to remove links which may cause an excessive invasion of privacy. The court concluded:
"The claimant now has to bear the consequences of his own actions. One of the consequences of committing a crime is that a person can be in the news in a very negative way and this will also leave its tracks on the Internet, maybe even for a very long time."
It is difficult to tell, but I would not be surprised if national courts take this approach in future cases, and the fear expressed time and time again by many commentators that Google Spain will be misused by criminals and other undeserving recipients may very well be unfounded.
The second big development has been that Google has released its transparency report for European privacy requests for search removals, which makes for some very interesting reading. Google received 146,938 requests and evaluated 498,830 URLs for removal, of which 58% were not removed.
Unsurprisingly, it received more requests from the largest countries in the EU (France, Germany, UK and Spain), with the UK accounting for 18,597 alone. What is interesting is the type of requests being received. These are some of the examples cited by Google:
Just from this quick snapshot we could argue that the RtbF is being used by two types of people. First there are the criminals who would like to have links to references of their offences removed from search engine result; these requests seem to be usually denied. Then there are requests to more serious privacy threats, such as the aforementioned rape victim; those requests are usually granted, and we could argue that in this regard the right to be forgotten is working as intended.
Google also released a list of most links removed by recipient web site. I found it surprising that the main site which has links removed is Facebook, with over 3,000 links. This is logical when you think about it; these are links to embarrassing pictures and comments made on Facebook which are probably available in the open web. The second web site is Profile Engine, a site that I did not know, which gathers information held about you online (apparently I still work at Edinburgh, and have an IQ of 120 according to that site).
It is still too early to conclude categorically one way or the other but, based on both developments highlighted above, it would seem that the fears from US freedom of speech advocates about the potential damage caused by the RtbF were unfounded. In my view the right is working exactly as it is supposed to, and it will give a tool to gain a bit more privacy wherever a serious breach may occur.
However, Google will probably continue to fight against the right to be forgotten. There is always a possibility that users will realise that they are not getting the full Internet, and will move to another search engine.Dr Andres Guadamuz is Senior Lecturer in Intellectual Property Law at the University of Sussex.
This article first appeared as a blog post on the Technollama blog: http://www.technollama.co.uk/
Registration for the Google Advisory Council's London session is available here: https://events.withgoogle.com/advisory-council-meeting-audience-london/