European Regulators Agree on Some Right to Be Forgotten Issues for Google

Peter Roesler, President - Web Marketing Pros

By Peter Roesler

President, Web Marketing Pros

Google-HQEver since a European High Court made the decision creating the Right to Be Forgotten, search engines and regulators have scrambled to designs systems to make the ruling work. The process has been confusing at best, and even now, it’s unclear what the end result will be. Earlier this month, European regulators have agreed on some guidelines for link removal, though major issues to remain to be resolved. This post will explain what has happened so far with the RTBF ruling, the newest guidelines from regulators, and some speculation on what will happen with the lingering issues.

Since May, Google has received more than 120,000 requests European citizens seeking to remove search results on everything from serious criminal records, embarrassing photos and negative press stories. In many cases, Google just removes the link as requested, but there are times when Google requires the requestor to get a court order. For example, if the person committed a crime, there may a public interest in keeping the information searchable. The guidelines agreed upon last week will help the local European courts decide what to do.

“We want the toolbox to guide difficult decisions on how to balance the individual’s right to privacy in the Internet age against the public interest,” Isabelle Falque-Pierrotin, who heads France’s privacy watchdog and the WP29, said earlier this month according to Reuters.

The guidelines won’t be finalised until the end of November, but according to initial reports, the guidelines will ‘set out categories for organizing the types of appeals coming in from citizens and create a common record of decisions taken by regulators’. Regulators will weigh factors such as the ‘public role of the person, whether the information relates to a crime and how old it is’.

The agreement on these procedures masks the serious unresolved issues that the Right to Be Forgotten has created. The first issue relates to Google’s practice of notifying content publishers that their content has been delisted. As was explained in our original article on RTBF, the ruling requires that search engines removes links to content but not that the content itself be removed. Telling publishers that their content has been removed from Google creates problems for regulators who are getting pressured by publishers who are frustrated by what is essentially the censorship of their content. Since Google isn’t required to tell the publishers about the delisting, some regulators would like for Google to be less helpful in that regard.

“There might be single, outstanding cases where involving the publisher might be appropriate. But to do so systematically is undue,” said Johannes Caspar, head of Hamburg’s data protection body in Germany which has jurisdiction over Google, according to Reuters.

The BBC and the Guardian have already written editorials condemning the European Union’s decision when it led to the delisting of some of their content and saying it amounts to censorship and whitewashing the past. Besides the media, the U.K.’s House of Lords and the House of Commons have condemned the RTBF ruling, noting some of the issues we raised in our first article.

The other issue that’s remains unresolved involves jurisdictional issues. Right now, if a person in Germany requests a link be removed under RTBF, Google only removes the link on the German version of Google, Google.de. The link can still be found by searching on Google.com or even Google.fr. Some of the regulators want to make RTBF rulings apply to Google globally.

“The effect of removing search results should be global. This is in the spirit of the court ruling and the only meaningful way to act in a global environment like the Internet,” Johannes Caspar, the head of Hamburg’s data protection body in Germany which has jurisdiction over Google, said in a quote to Reuters.

Though this is speculation, it is highly unlikely that RTBF could be applied globally. Although the European Union has no problem with limiting freedom speech within the countries in the union, the right to Freedom of Speech is more firmly enshrined in America. There is no legal way that a court in the European Union can censor content for audiences in America, which is what regulators like Caspar are suggesting. This would be as insane as China saying that Google must censor internet material they don’t allow from search results all around the world.

The Right to Be Forgotten may have been created with good intentions but the implementation is showing the trouble with trying to apply censorship rules in societies that value transparency, freedom of speech, and freedom of the press. It will still be a while before all of this is final settled. Since the outcome will affect search results and international policy, this is something that business owners and marketers should keep one eye on.


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