The Thorny Dilemma At The Heart Of The “Right To Be Forgotten” Delisting Debate

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Last week, the Google Advisory Council on the Right to be Forgotten (“RTBF) issued its formal report (embedded below via TechCrunch). The report is the culmination of many months of public hearings and discussions in multiple countries throughout Europe.

Among many other things, the document addresses the hotly contested issue of the “geographic scope of delisting.” This is now ground zero for RTBF — how broadly should it apply? Should it be limited to EU-member versions of Google only or should it apply to all Google.com results as well?

Consistent with Google’s position, the report advocates that delisting be limited to the local versions of Google (or any other search engine):

The Ruling is not precise about which versions of search a delisting must be applied to. Google has chosen to implement these removals from all its European-directed search services, citing the CJEU’s authority across Europe as its guidance.

The Council understands that it is a general practice that users in Europe, when typing in www.google.com to their browser, are automatically redirected to a local version of Google’s search engine. Google has told us that over 95% of all queries originating in Europe are on local versions of the search engine. Given this background, we believe that delistings applied to the European versions of search will, as a general rule, protect the rights of the data subject adequately in the current state of affairs and technology.

Europe’s official and increasingly vocal position is that any successfully delisted results should be removed not merely from the local version of Google but from the entire Google.com index. To not do this, the argument goes, is to trivialize RTBF because it can be easily circumvented simply by going to Google.com and doing the same search, which will presumably show the delisted results.

Taking this line of reasoning to its conclusion, one could argue that over time RTBF might cause many people in Europe to simply use Google.com and avoid the local version of Google entirely, thus effectively gutting RTBF.

The report cites data asserting “that over 95% of all queries originating in Europe are on local versions of the search engine.” It then concludes, as a result of this finding, that local-only delisting “protect[s] the rights of the data subject adequately in the current state of affairs and technology.”

The Advisory Council report sidesteps the issue of whether European Courts and associated regulatory bodies have the legal authority or jurisdiction to impose RTBF on Google worldwide. That’s what Google has been resisting.

The basic idea that switching over to Google.com make RTBF less meaningful is correct. There’s no data cited however on whether or what percentage of the EU user population actually are doing this in reaction to RTBF. I would guess the numbers are extremely small if they exist. Nonetheless, the EU’s argument is logical and coherent and makes sense because it seeks to make RTBF more enforceable in Europe.

By the same token, as I’ve previously argued, to scrub the full Google index of RTBF links would be to extend EU privacy rules to the entire globe, which is probably not desirable and also not “legal.” Europe can’t tell Columbia or Indonesia what its domestic privacy laws should be. Indeed, for better or worse, there are many different legal standards governing privacy and speech around the globe. The report seeks to avoid this more complex “jurisdiction” issue however — because it’s probably unsolvable.

In the debate about the scope of delisting, both sides are logically coherent and potentially correct. The dilemma on display here, not for the first time, is one that arises because of the unique way in which the internet obliterates geography. But one has to take a position on the issue; and I agree ultimately with Google that RTBF should not be applied globally but only to its local versions within Europe.

I assume that ultimately there would be a technological solution to address Europe’s concerns about Google.com results and usage within the physical boundaries of Europe. I just don’t know what it would be.

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