Google Speaks About Difficult Decisions In Implementing “Vague & Subjective” Right To Be Forgotten

David Drummond

David Drummond

Writing today in the Guardian, Google’s chief legal officer David Drummond spoke to mistakes Google made in removing some links last week under the EU’s new Right To Be Forgotten mandate, as well as the difficulties in implementing the law, including naming some criteria where removals are less likely to happen.

Some Links Restored; Removal Process “Work In Progress”

From his opinion piece, about the restoration of some removals last week, Drummond wrote:

Only two months in our process is still very much a work in progress. It’s why we incorrectly removed links to some articles last week (they’ve since been reinstated). But the good news is that the ongoing, active debate that’s happening will inform the development of our principles, policies and practices – in particular about how to balance one person’s right to privacy with another’s right to know.

There Is No “Journalistic Exception”

Despite the mistake in removing the links — which wasn’t explained in more depth — Drummond stressed that media outlets are not exempt from the removals (something last week that I commonly saw misreported). Publications are subject to other removals, even though Google disagrees with the concept in general as Drummond explained:

The court also decided that search engines don’t qualify for a “journalistic exception”. This means that the Guardian could have an article on its website about an individual that’s perfectly legal, but we might not legally be able to show links to it in our results when you search for that person’s name. It’s a bit like saying the book can stay in the library but cannot be included in the library’s card catalogue.

It’s for these reasons that we disagree with the ruling

The EU’s Removal Criteria Are “Vague & Subjective”

While also saying that Google would comply with the ruling, as it has been doing as it has processed 70,000 requests involving 250,000 web pages so far, Drummond stressed that the guidelines for removal are “vague and subjective.” From his piece:

The European court found that people have the right to ask for information to be removed from search results that include their names if it is “inadequate, irrelevant or no longer relevant, or excessive”. In deciding what to remove search engines must also have regard to the public interest. These are, of course, very vague and subjective tests.

Google Outlines What It’s Less Likely To Remove

Drummond also revealed the most detailed information to date about how Google is making its own decisions about what to remove:

When it comes to determining what’s in the public interest, we’re taking into account a number of factors. These include whether the information relates to a politician, celebrity or other public figure; if the material comes from a reputable news source, and how recent it is; whether it involves political speech; questions of professional conduct that might be relevant to consumers; the involvement of criminal convictions that are not yet “spent”; and if the information is being published by a government. But these will always be difficult and debatable judgments.

To recap those in bullet-point form, these seem to be factors that weigh against removal:

  • Does information involve public figures?
  • Does information come from a reputable news source?
  • Is the information recent?
  • Does the information involve political speech?
  • Does the information involve professional conduct?
  • Does the information involve criminal convictions where time is still being served?
  • Is the information published by a government?

Advisory Group To Meet, Solicit Public Feedback This Fall

Drummond also revisited the previously announced council of expert advisors, saying that new members will be added, so that the group is finalized tomorrow. The group will ask for evidence and hold public meetings this fall, he wrote:

These external experts from the worlds of academia, the media, data protection, civil society and the tech sector are serving as independent advisers to Google. The council will be asking for evidence and recommendations from different groups, and will hold public meetings this autumn across Europe to examine these issues more deeply.

The experts’ public report will include recommendations for particularly difficult removal requests (such as criminal convictions); thoughts on the implications of the court’s decision for European internet users, news publishers, search engines and others; and procedural steps that could improve accountability and transparency for websites and citizens.

Google Doesn’t Oppose All Removals

While stressing the need for debate and examination, Drummond didn’t reject the idea of a Right To Be Forgotten entirely, ending his post with examples that many might sympathize with:

The issues at stake here are important and difficult, but we’re committed to complying with the court’s decision. Indeed, it’s hard not to empathise with some of the requests that we’ve seen – from the man who asked that we do not show a news article saying that he had been questioned in connection with a crime (he’s able to demonstrate that he was never charged) to the mother who requested that we remove news articles for her daughter’s name as she had been the victim of abuse.

Postscript: Google’s now opened a public feedback form asking for comments about the Right To Be Forgotten ruling, as well as having posted its full advisory council makeup.