So, it finally happened. After years of people telling me that “Europe” will do nothing about Google and me saying that one day “Europe” will probably bite back, it did. “Europe” bit off a whole chewy chunk of Google and all other search engines in just one surprise and relatively unexpected verdict.
The hysteria surrounding the case has reached all corners of the press. “Freedom of speech destroyed,” they say. “Criminals are already asking for removal of their information,” they say. Even Jimmy Wales of Wikipedia is distraught.
But yes, this is a big deal. It has certainly left some members of the press shuddering in their boots because although the news press was actually untouched in this case, there is a fear that this is another step down the road to press censorship – a fear already omnipresent in the UK, where top newspapers have been made subject to a new press watchdog (which they are largely refusing to comply with).
But, have you read the judgment? Do you know what they’re really saying? Here’s a link to an official press release summarizing the most important aspects of this judgment. Whilst this decision has been described as immensely far reaching, the devil is really in the details — and might not actually be so devilish.
Note: This is my personal perspective, and I am not a lawyer! Please seek specific advice from a qualified lawyer from the relevant country if you need it (especially if you’re called “Google”).
First, we need to consider which court this is — known as the Court Of Justice of the European Union, this is not the European Court of Human Rights, which is a supra-national organization with a reach well beyond the European Union. No, this court is the final arbiter in questions of European Union law which really means “European Directives.” Its responsibilities stop at the countries of the European Union.
Still, the EU’s 507 million population, 24 official languages and 28 countries make it much larger than the U.S. and a significant target market for Google and other search engines.
Europe is largely legally governed by European Directives, which are essentially legal frameworks as well as instructions for the lawmaking institutions of European nation members to follow. However, the country members have a relatively wide degree of leeway on how and when to implement these laws as well as what to do to enforce them, and these countries regularly implement European Directives differently.
In this case, the European Directive concerned is the directive covering the processing and movement of personal data (95/46/EC). This particular case was brought by the Agencia Española de Protección de Datos or AGPD (agpd.es), the Spanish Data Protection Registrar, on a behalf of a Spanish individual.
The Spanish citizen concerned had suffered the repossession and auction of his home in 1998 because the Spanish government took steps to recover unpaid social security monies. This was reported at the time by La Vanguardia, the leading newspaper in the Catalunia region.
Google had crawled La Vanguardia‘s website and was displaying a link to the story prominently in SERPs when a search for the subject’s name was made — despite it being 16 years since the original incident occurred and since the story was published.
The Spanish citizen complained that this was unfair and that he should have a right to be forgotten — especially since the debt had long been resolved and the information was no longer relevant.
Crucially, the judgment found that Google was a data Controller and was processing personal data. This might seem like a legal detail but what it means is that Google may no longer say, “We’re only republishing content that we found on the Web — nothing to do with us.” And, it means that Google has to comply — in the European Union — with the European Directive insofar as it is implemented by national parliaments.
They also decided that since Google was selling advertising in Spain, even if they didn’t have an organization based there, they would still be regarded as having an “establishment” in Spain. (One interpretation, then, is that Google has to comply with this directive in all EU countries where it sells advertising, but not in those countries where it doesn’t sell any advertising — whether or not Google has an official entity in the country. This is up for debate, however.)
Significantly, the Court found also that La Vanguardia had correctly published the content and did not ask the newspaper to take any steps to remove, change or edit it, effectively protecting the rights of the press (Jimmy Wales, please note). The issue addressed in this case was quite clearly the fact that Google displayed this piece of history so long after it took place.
It is also true that the judges were very concerned with striking a balance between an individual’s personal data and the public’s right to know certain information. They were careful to point out that one way in which a data processing organization can justify publishing personal data would be whenever it was “in the public interest,” which covers a pretty wide remit.
European Directive 95/46/EC also doesn’t give the protection of personal data rights relating to any criminal activities — so despite what some newspapers are saying, this doesn’t, in my view, create a situation whereby criminals can ask to have their offences or court cases removed. (Don’t forget, the Spanish man in question had done nothing considered “criminal.”)
Additionally, this decision only related to “individuals” and not to any organizations or companies.
What the ruling ultimately means is that newspapers are still allowed to publish information on an individual, and search engines are still allowed to display those results in SERPs. However, when this personal information pertains to non-criminal activity which is damaging to a person’s reputation, he or she can submit a request for removal from SERPs. The info would still exist on the publisher’s site, however, as the publisher is not required to remove it.
Specifically, the judges actually said, “The Court observes in this regard that even initially lawful processing of accurate data may, in the course of time, become incompatible with the directive where…. the data appear to be inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed.”
Note the phrases “over the course of time” and “no longer relevant”!
Controversially, you could assert that the court is arguing for improved relevancy in the search engines — that the Spanish citizen in question was being unfairly treated because his earlier issues were, after 16 years, “no longer relevant.”
Yes, it’s actually nothing more than a court saying that Google is not relevant enough. So the fix must be in the algorithm. For instance, 16-year-old newspaper stories about people probably shouldn’t be on page one!