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Is Google liable for unlawful web graffiti on its walls?

High Court says no, Spanish beaks unsure

The smart choice: opportunity from uncertainty

Europe's highest court has been asked to make clear whether or not it is Google's responsibility to remove data from its search engine index and news aggregator if it hadn't produced that material itself.

The request from Spanish court, the Audiencia Nacional (in Spanish), to the European Court of Justice came as a top judge in the UK ruled that Google was not responsible for what he described as "internet graffiti" on the company's services.

Madrid's data protection authority received over 100 requests from Spanish citizens who wanted information deleted from Google's search results, prompting Spain's highest court to seek clarity on the matter from the ECJ.

Audiencia Nacional judges also asked the ECJ if complainants would be required to go via a Californian court in order to air their gripes seeing as that's where Google is headquartered.

The company implemented its new privacy policy last week despite protests by a French watchdog on behalf of the Article 29 Working Party, which is an independent data protection advisory body to the EU.

Google had been urged to halt the changes to its terms of service amid concerns over the firm's handling of its users' data and the ramifications of the tweaks for an individual's privacy online.

But, in contrast to Spain's referral to the ECJ, Mr Justice Eady threw out a libel case brought against Google at the UK's High Court late last week.

He declared that Google was "purely [a] passive wall" and said the world's largest search engine had no responsibility for the "graffiti" posted on its blogger.com service.

Put simply, the judge - citing common law - found that defamatory snippets on Google's platform had not been published by the company and Eady thereby ruled that Mountain View was not liable for those remarks.

Removing material and the right to be forgotten

Google has put out carefully-worded statements rejecting the main thrust of the so-called "right to be forgotten" online - a pledge championed by European Commissioner Viviane Reding to give EU citizens the right to erase damaging material published on the internet.

Peter Fleischer, Google's privacy counsel, has labelled the "right to be forgotten" as a "political slogan".

"As this debate unfolds, the lack of clarity is raising false expectations. As people read that there will soon be a legal 'right to be forgotten', they are asking DPAs and search engines to delete third-party content about themselves or links to such content," he said just days after the commissioner tabled her draft data protection bill with the European parliament.

"I regularly hear requests from people to 'remove all references to me, Mrs X, from the internet'. No law can or should provide such a right, and politicians and DPAs should not mislead them to expect it."

Blighty's High Court has agreed with that argument; it's less clear if other parts of Europe - where data protection is much more strongly enforced - will share that view, however. ®

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