Original URL: https://www.theregister.com/2014/05/14/google_eu_ruling/
Europe's shock Google privacy ruling: The end of history? Don't be daft
Courts will decide whether a complaint has merit. As one did on Tuesday
Posted in Legal, 14th May 2014 13:43 GMT
Comment Anyone familiar with The Day Today's "IT'S WAR" episode will know how much the media love to create an imaginary threat. Channel 4 had its own "It's War" moment yesterday, asking whether the European Court of Justice (ECJ) had signalled the "end of history" – by supposedly giving anyone the "right to erase their past".
The line a lot of the media have been taking is a testament to how one corporation (Google) has influenced how we think about things. But there's a problem: it just isn't true.
You won't be able to "censor Google" just because you don't like something. Nor will asking Google get something deleted. There's no new "right to be forgotten".
There's nothing new today that need worry publishers and journalists - Lord Leveson's Whingers' Charter has far more of a chilling effect on news operations, especially smaller ones. And Google can say no to complaints. The courts ultimately decide whether a complaint has merits or not. In short, power hasn't shifted dramatically one way or another. It hasn't really shifted at all.
All the ruling did was make Google subject to European laws. The case brought against it by Spain's data protection agency (on behalf of a Spanish citizen) merely argued that Google should respect one of European law's "fundamental rights", that of the right to privacy. Google's reaction to a European asserting his or her rights was a familiar one: You can't catch us. N-yerr.
The internet giant structures its international operation quite deliberately so it remains beyond national laws. Google argued that, as per an EU directive, its data processing is performed in the United States, and its totally separate businesses in each European country merely sell ads.
But Google's Europe tentacles are not just ad-sellers
This hair-splitting argument was thrown out yesterday. The ECJ judged that they couldn't be standalone businesses because without the data processing, the ad businesses wouldn't exist. The court wrote that the two were:
inextricably linked since the activities relating to the advertising space constitute the means of rendering the search engine at issue economically profitable and that engine is, at the same time, the means enabling those activities to be performed.
It therefore had to treat Google as one corporate entity. And simply because, as a multinational, you're everywhere doesn't mean you can pretend to be nowhere. That's reasonable enough.
(Google had actually advanced an even more hair-splitting argument in its defence. It argued that it didn't specifically process personal data. It processed "all data", so if personal information was caught up in its machinery, well, that's too bad. That argument was given short shrift.)
Yesterday, the ECJ simply affirmed that privacy is a "fundamental right", defined here in Article 7 of the EU Charter of Fundamental Rights, alongside other fundamental rights like free expression – and Google can't ignore it. The two rights will bump into each other from time to time. and the justices painstakingly pointed out that one fundamental right doesn't trump another.
So. The ECJ didn't create a new fundamental "right to be forgotten", which Commissioner Viviane Reding has called for. Any right to be forgotten in Europe remains just as it was on Monday – a privacy right that has to be weighed against other rights. It's not like you can suddenly bring a gun to a knife fight, and demand stuff is removed. Index on Censorship got it badly wrong yesterday, comparing the ruling to book-burning. Wikipedia supremo Jimmy Wales frantically took to every media outlet that would have him to echo this. And without apparently fully understanding the ruling, Channel 4 News magnified the alarm.
Jimmy Wales whips up the mob
This is nonsense because, as a complainant, you still have to go through a state's Information Commission or a court, and a judge still has to decide whether your case has merits. The justices spend some time discussing how this balance between privacy and expression should be struck.
The ECJ acknowledged that there's a conflict, and that asserting a right to your private life infringes upon someone else's freedom of expression.
A citizen can only ask a "data processor" to take action if the information is "inadequate, irrelevant or no longer relevant, or excessive in relation to those purposes and in the light of the time that has elapsed" – and that adds up to something seriously prejudicial to the citizen.
So this is not censorship or book-burning. It's only an issue if it's inadequate, excessive or out of date and if it's considered prejudicial to the citizen. So it isn't a Whingers' Charter. Although that doesn't mean people won't start to whinge.
But whinging isn't enough to get a story removed from Google, the justices say, quite clearly (and twice). The right of removal – if the conditions have been met – can still be outweighed by freedom of expression and the public interest.
The ruling states:
However, [removal] would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of inclusion in the list of results, access to the information in question.
In other words, the European Court acknowledged that a dominant search engine has immense power over reputations – far more than any newspaper. It has a unique ability to create and define an individual's reputation which a newspaper alone can't create. That's "information which potentially concerns a vast number of aspects of his private life and which, without the search engine, could not have been interconnected or could have been only with great difficulty," according to the ruling.
Professor Google – the only historian we need?
Once you've read the ruling, it's clear much of the press hysteria isn't remotely justified; it's a self-feeding loop. So much of the wild dystopian speculation is clearly contradicted by the ruling itself. But it says a lot about two things: how the media views the individual and how it dances to Google's tune.
The giant internet plantations like Facebook and Google constantly demand the individual surrender their individuality, their formal legal rights – their right to privacy, the right to control their creativity – must all be diminished. At the merest sign of inconvenience, they then invoke a mob to defend their interests – evoking woolly language like the "open internet". They did so with SOPA and ACTA, are doing so with net neutrality, and do it every day with their fight against privacy. The sky is falling!
Jimmy Wales, an American now active in British politics, has emerged as the lead boot boy for Big Internet. He was at it again yesterday.
Alone among the news outlets yesterday, BBC's Newsnight (in which I appear, briefly) mentioned that the ECJ strengthened the rights of the man in the street. This is correct. The individual has not won "the right to be forgotten", merely the removal of something very damaging, from something very powerful, in circumstances when the right to know isn't impinged. But you wouldn't know it from most of the coverage.
In the EU, the individual has a right to privacy. But a right is not a magic light-sabre, and an assertion of a right is not, in itself, the same as winning every argument using that magic light-sabre.
Judges must still decide each complaint on its merits, and balance rights. What you can't do is complain when they assert it. Yesterday we had the surreal sight of Big Brother Watch, which tells us it fights for privacy and the individual, going in to bat for Google.
Voices to defend the individual were thin on the ground.
Another question, raised by the hysterical and ill-informed reaction, begs some answers. If erasing an old entry from Google is now, as Jon Snow suggested yesterday, "the end of history"*, then that implies we appointed Google as our sole digital historian.
Is this really what we want to do? Aren't there cultural archives to do this sort of job? Wouldn't they do this rather better than a multinational that finds itself in opposition to privacy law? And would we allow cultural archives and libraries to be quite as unaccountable and powerful?
Hopefully this judgment is the start of a national debate on what our digital memory box might look like. Frankly, we've all got a bit lazy and dependent on Google to do it for us.
As for the press, all it may have achieved with the "book burning" hysteria yesterday is encourage people whose claims don't have much merit – the egotistical, the prickly – to troll the Information Commissioner. Well done, everyone. Trebles all round. ®
* Channel 4 News headlines' intro begins: "We have the right to have our past wiped off the internet, says a European Court. A victory for privacy, or the end of history?"