Slippery Google greases up, aims to squirm out of EU privacy grasp

'A digital superstate that can navigate its floating kingdom undisturbed by nation-states and their laws'

Google has assembled a SOPA-style "populist" campaign designed to persuade bureaucrats and the media that the ECJ's privacy ruling is unworkable - before it's had a chance to work.

Google's strategy appears to be similar to Microsoft's in times past, when it was ordered by a US judge to demonstrate a version of Windows with Internet Explorer "disentangled". It turned up with a modified, "disentangled" copy of Windows that wouldn't boot. It was saying: "See, if we comply with your crazy order, you stupid judge - everything breaks."

The Process

The question is - will Google succeed? Here's how the new data protection changes are working their way through the EU machinery.

The EU views "a strong EU General Data Protection framework" as "essential for the completion of the Digital Single Market", a goal it wants to declare in 2015. So it's updating these regulations: Directive 95/46, which established how Freedom of Information and data privacy work in Europe. The UK adopted this in 1998.

The new framework was announced two years ago, in January 2012. This can be read in detail in here and here.

The EU parliament approved them with a plenary vote in March this year - meaning they're set in stone - almost. The final step is adoption by the Council of Ministers. On Friday the Council met in Luxembourg to discuss data protection.

American companies are hardly flavour of the month in Brussels following the Snowden revelations. Google is trying to fend off a full investigation into how it treats third party businesses in its search results, and over its grip on the digital market. Google's privacy rap sheet illustrates the range of data protection concerns. And that was all acquired before it bought home-monitoring outfit NEST.

In April, Mathias Döpfner, the boss of Axel Springer, described Google as "a kind of superstate that can navigate its floating kingdom undisturbed by any and all nation-states and their laws". (Here in pdf).

That makes it all the more likely that American companies will have to conform to Pillar Two of the Commission's Proposal:

Pillar Two: Non-European companies will have to stick to European data protection law if they operate on the European market ...

At this stage, could an amendment be tabled that defies the Commission, the Parliament, and the CJEU - one that simply excludes Google from European Law?

In theory, yes - but given the context, this is unlikely, thinks Serena Tierney ‎Head of Intellectual Property at commercial law firm Bircham Dyson Bell.

"It could, but I don't think it would. The Court makes it clear that this decision is to strike a balance two fundamental rights: privacy and freedom of expression."

The Germans in particular feel so strongly about privacy, that such a move would be an affront. Google can dream of a world without laws to inhabit its behaviour. It's not going to get a world without Germans.

Last week the Article 29 Working Party met and issued a strongly worded statement.

It vowed to investigate if Google refused to abide by the CJEU ruling, promising to develop "a coordinated response to complaints of data subjects if search engines do not erase their content whose removal has been requested.

It added all search engines are "to put in place user-friendly and pedagogical tools for the exercise by their users of their right to request the deletion of the search results links containing information relating to them. More generally, search engines should ensure compliance with the opinion of the WP29 on data protection issues related to search engines (WP148)".

Google has flooded Brussels with lobbyists, but this may not be an adequate response to regulators on a continent growing weary of what is more and more perceived as US arrogance. Sources familiar with the Article 29 Working Party tell us that after it wrote to Google in 2012 reminding it that its privacy policy broke EU law, Google failed to reply.

That imperial indifference to different cultural practices is coming back to haunt Google. ®