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Google mouthpieces: 'Right to be Forgotten' should not apply on google.com

Jimbo Wales says it's not Google's problem at all

After much debate and a seven-city tour of Europe, Google’s self-appointed advisory board has finally published its opinion on the so-called “right to be forgotten”.

Last May, Google was ordered to remove links to “outdated or irrelevant” information about a Spanish individual by the European Court of Justice. Since then, Google has received more than 210,000 requests to de-link nearly 800,000 URLs. Around 60 per cent of requests have been refused. Meanwhile the eight-person independent panel was set up - by Google - to evaluate how the search giant should proceed and what criteria should be taken into account when making decisions.

The report lays out five elements that should be considered:

Does the individual have a clear role in public life (for example, politicians, CEOs, celebrities, religious leaders, sports stars, performing artists)? If so, they probably don’t deserve de-listing.

Nature of information: If it’s to do with someone’s sex life, financial details, contact or identification information, it’s private and should be “forgotten”. Ditto any info on minors.

Source of the information: Professional journalists get a bit of leeway when it comes to reporting. Likewise information published by “recognised bloggers or individual authors of good reputation with substantial credibility and/or readership will weigh in favor of public interest”. Information you put up about yourself on social networks is fair game, after all as the Advisory Council points out, you could easily delete it yourself.

Time: When was the info posted? Is it out of date? This was one of the key considerations in the original ECJ ruling - “the notion that the relevance of information may fade” as circumstances change.

Also guaranteed delinking is any information that is false, makes an inaccurate association or puts the data subject at risk of harm. This point is somewhat superfluous as such information is already dealt with under defamation rules. What made the ECJ ruling so controversial, is that the information about the Spanish citizen was entirely accurate and a matter of public record and was merely “outdated”.

As well as generally recommending more transparency and saying that individuals should not be easily identified - for example by the notification on Google’s search results page that “Some results may have been removed under data protection law in Europe”, the Advisory Council also recommended “the search engine should make the removal request form easily accessible and intelligible to data subjects.”

It also said that Google should tell webmasters when information from their site is being delinked - and in certain tricky cases, Google should talk to content publishers before to making a delisting decision. Publishers should also be able to challenge decisions, something individuals can already do if their request is turned down. The Irish data protection authority is already investigating 18 individuals' appeals, but says it has no legal standing to deal with publishers who believe articles have been wrongly de-linked. The Advisory Council clearly wants to address that imbalance.

However the Advisory Council is not the united front it first appears and members note at the end of the document that they disagree with some of the report.

Council members José-Luis Piñar, Professor of Law at Universidad CEU and former Director of the Spanish Data Protection Agency, and Lidia Kolucka-Zuk, Director of the Trust for Civil Society in Central and Eastern Europe, expressed concerns about aspects of the right to parody and said they believe it would have been better not to include a section on religious information at all.

Jimmy Wales, founder and chair of the Wikimedia Foundation was even more forthright: “I completely oppose the legal situation in which a commercial company is forced to become the judge of our most fundamental rights of expression and privacy, without allowing any appropriate procedure for appeal by publishers whose works are being suppressed.”

In the past, Google has been keen to point out that its economic interest plays no part in deciding on the merits of each request.

“It is in a search engine’s general economic interest to provide the fastest, most comprehensive and most relevant search results possible. Beyond that ... our economic interest does not have a practical or direct impact.”

The most controversial aspect of the “right to be forgotten” implementation is probably geographical scope - ie should it apply to the google.com domain as well as local European Google sites such as google.co.uk?

Council member Sabine Leutheusser-Schnarrenberger, former Federal Minister of Justice in Germany, thinks it should:

“I do not share the opinion of the majority of the Council Members in this point. The ruling does not expressly refer to the geographic scope of the removal request. According to my opinion the removal request comprises all domains, and must not be limited to EU-domains.”

It is hardly surprising that this issue has split the council as debate outside the Google travelling circus has also been fierce.

Leutheusser-Schnarrenberger’s objection aside, the Advisory Council sides with Google on the extraterritoriality question, saying it is worried that “repressive regimes [could] point to such a precedent in an effort to lock their users into heavily censored versions of search results.”

According to the report, “the Council heard evidence about the technical possibility to prevent internet users in Europe from accessing search results that have been delisted under European law. But it is unclear whether such measures would be meaningfully more effective than Google’s existing model, given the widespread availability of tools to circumvent such blocks.”

According to Google, fewer than 5 percent of European users use google.com and Google thinks most of those are travellers. In the future the users of google.com may be mostly searchers wanting to see results that would be removed on their local sites. ®

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