Friday, May 30, 2014

Google remembers, after only two weeks

Google has implemented the "right to be forgotten" imposed by Google Spain on 13 May 2014. At slightly over two weeks for a response, this puts most actual governments to shame :-) Having failed totally to comment on the original document due to overwork swamp, I'll say a few things about the response.

The form allows EU users to ask search engines to remove results for queries that include their name where those results are “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed.”.

This is clearly narrower than the full scope of the right granted by the judgment.

" As regards Article 12(b) of Directive 95/46, the application of which is subject to the condition that the processing of personal data be incompatible with the directive, it should be recalled that, as has been noted in paragraph 72 of the present judgment, such incompatibility may result not only from the fact that such data are inaccurate but, in particular, also from the fact that they are inadequate, irrelevant or excessive in relation to the purposes of the processing, that they are not kept up to date, or that they are kept for longer than is necessary unless they are required to be kept for historical, statistical or scientific purposes." [emphasis added][italics added][para 92]
Only the parts of the judgment in italics above have currently been implemented. Strange that the form does not specify "inaccuracy" as a ground which is clearly signposted by the judgment, though was not true in the actual case of Mr Costeja Gonzalez.

 Art 12 (b) actually specifies that rectification, erasure or blocking can be obtained, inter alia, if data is "incomplete or inaccurate"  (the word "incomplete" not cited by ECJ) and more generally as noted above if it is "incompatible with the Directive".

What does this mean?
I would argue these are all possible claims to Google to ask to have links removed-

  • a celebrity who has changed their image since a picture was put online ("inaccurate")
  • a celebrity who has not changed their image but for whom the picture is unflattering  in relation to the whole corpus of their online photos eg taken from a bad angle or on a bad hair day ("incomplete")
  • a celebrity who at one point contractually agreed to have pictures taken and posted but who has now changed their mind about their dissemination on the Internet (after having been paid in full?) , Because they have withdrawn consent as a ground for processing , processing is now "incompatible with the Directive"

In short Google are, perhaps, currently (understandably) attempting to dodge the  bullet of implementing a full blown EU image right (for countries many of which have no such thing, or not in clear statutory terms) by dressing up their offering with the language of history, reputation and freedom of expression. One can understand why.  There will be many other edge cases to come.

The form itself is mainly pretty sane. A few points are worth pointing out:

  • they are choosing not to roll the right out to non EU citizens. I thought there was a  chance in the interests of harmonisation/efficiency they might have done. Since Google is a private company not the government, my view is this would have simply been a private choice, not a breach in any way of First Amendment, and so viable  (see  CyberPromotions v AOL, waaay back in l996, though have we had the judicial discsusion since as to whether Google is more like a "traditional public form" now than AOL was?) That would have been unlikely given the likely shrieks of tarnishing of free speech in the US but would have made the process of identifying an EU citizen uneccessary (see below) and would have been extremely fun to watch:) (Plus, recall that California is rolling out the right to be forgotten to minors anyway from 2015 - though whether this survives Constitutional challenge is also as yet unclear.) Wouldn't Google have got lots of brownie points for offering US citizens extra privacy rights in the post Snowden backlash era? or would the civil rights lobby for speech make their lives not worth willing? maybe one to watch for the future if the EU experience pans out well?

  • they are choosing to (they say) do an initial assessment in-house of privacy claim vs public interest in freedom of expression and historical record. 

"When evaluating your request, we will look at whether the results include outdated information about you, as well as whether there’s a public interest in the information—for example, information about financial scams, professional malpractice, criminal convictions, or public conduct of government officials."

Again I thought they might choose path of least resistance,  which would have been simple take down on request, and wait for someone else to complain and then demand adjudication to put back, as with DMCA take downs, but no. The problem of course with applying the DMCA "put back"model to the right to be forgotten is that here there is no-one who has a clear agenda (or funding) to oppose take down. As I noted on Twitter with privacy even in Europe there is no relevant organisation: the role of the DP authority is to protect privacy rights, not freedom of speech  and they have no training or aptitude, or , again, funding, to take on a kind of historical assessment or investigatory role.

  • Identification of claimant was going to be the toughest one. The routes chosen are the obvious ones and can of course be easily faked but should mainly do the job; choosing a digital signature would have been v onerous. Will we see US citizens faking up EU credentials to get stuff removed? Of course in most cases Google's own database would provide the evidence of the true national identity (needed of course to serve the right ads, and in the right language) - but will they set their investigatory algorithms up to find this out? Probably.

We don't have any indication how many people will be in the evaluation team, how far the investigation will be done solely by automated means (maybe) and if the results will go in the Transparency Report (probably).

Fun times ahead!

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