The Problem with Europe's 'Right to Be Forgotten'

So when Gonz'lez Googled his name and saw the article about his debtor's sale pop up on the first page, he filed an administrative petition seeking to take the article off Google's list.

Google As 'Data Collector'

The Spanish authorities granted his petition, finding that because Google is classified as a data collector rather than a news outlet, it is not subject to protection as a media company. Google appealed, and the case went to the European Court of Justice.

The court's opinion, released in May, found European Union law applies in three ways so sweeping that some say it could “break the [I]nternet,” according to an article on the Harvard University-affiliated Digital Media Law Project website. See, “Will E.U. Court's Privacy Ruling Break the Internet?” The reality is less hyperbolic, but not by leagues.

First, the court held that Google is subject to European data privacy laws based on a subsidiary it keeps in Spain to sell advertising, even though its computing operations are all in the U.S. This basis for jurisdiction sets up a strange regime in which European privacy laws only apply to search engines that keep offices physically in Europe, even though every search engine is equally accessible from within European borders.

Second, the court held that being a data collector makes Google subject to Europe's data privacy laws and it can be held legally responsible for violating those laws based on the content it puts on any user's screen ' even if that content is legal and constitutes nothing more than links to other pages on the Web.

Third, the court held that European data privacy regulations require Google to remove from search results any links to so-called “personal data,” such as a news article, if the person who is a subject of the article claims it is “outdated” or “irrelevant.” Every time any person requests a link to personal data be removed from Google's results, the Internet giant must balance the individual's right of data privacy against the “preponderant interest of the general public” in the information in question.

That's a strange task to demand of a private company, let alone one conceived around algorithms and patents rather than history or philosophy. What does Google know about whether a Web page or news article is “outdated” or “irrelevant” compared to the public interest? Well, it better know something, because the penalty to Google for failing to comply with the court's order could be as much as 2% of its global revenue, some $55 billion in Google's case. That's so even though only websites that compile information from other sources are subject to the court's decision ' the original La Vanguardia article is untouched by the court's ruling, protected as news media.

Removing Data

Also striking is the court's conclusion that personal data includes anything written about a person. That shifts tremendous power from the author of a writing to its subject , even if it's legal and truthful, and makes clear that protection for artistic, literary, cultural and news works is an exception, not the rule. Combined with the court's expansive interpretation of data collector, the ruling likely applies not just to Google and other search engines, but to virtually any website that allows users to post content of their own because that content might include someone's personal data.

So, from Twitter and Instagram to Yahoo and Facebook and the comments sections on forums and blogs, firms that don't produce their own media but merely store what others post could well be subject to the ruling. Is there an e-mail sitting in your personal Gmail inbox that happens to include a link to a censored news article? It's suddenly gone. A photo you posted of your friend to your own Facebook feed three years ago? Adieu!

The biggest paradox in the ruling might be the very notion that a person would care about removing a link that's genuinely “outdated” or “irrelevant.” If the information is actually outdated or irrelevant, why would it matter if it's on the Web? The fact that someone wants to remove a link suggests that at least person thinks it's relevant to something .

This new “right to be forgotten,” as journalists have dubbed it, arises from a French concept, “le droit ' l'oubli,” that better translates as “the right to erasure” or “oblivion.” French and German laws allow some convicted criminals to suppress reference to their names in media publications after serving their punishment. But this is much more expansive, and on its face, the court's ruling presents mostly questions. How tech firms are supposed to step in to a fact-finding and judgment role usually left for courts and juries is a complete mystery. Does the right to remove data apply to companies? Does it apply to links in every language? How long does the search engine have to respond? What if the person first sold his story or published it voluntarily? What if the person is famous or infamous? What if it's spin ' thanks for letting us know that racist slur was a joke, Mr. Sterling, we'll take it off Google now?

Google set up a form to take personal data complaints, and got 12,000 removal requests on the first day. The company says it will have human beings review every request to determine whether it involves “financial scams, professional malpractice, criminal convictions, or public conduct of government officials.” Links to everything else, though ' arrests, news articles, gossip columns, Yelp reviews, angry rants, drunken YouTube videos ' are fair game for censorship. Google says so far it's fielded requests from convicted pedophiles, politicians wanting to run with clean voting histories, a man who had been charged with attempting to kill his family but released on a technicality, a physician who didn't like reviews about him on a ratings website, and thousands more.

Even analyzing the complaints will require huge teams of compliance staff ' not just at Google, but in most tech and media companies in Europe. In an industry where the Next Big Thing might well be a glint in the eye of a 12-year-old girl coding in her parents' suburban Berlin garage, compliance costs could quickly choke European Internet innovation. They will certainly choke European courts, which will need to decide cases on the meaning of this ruling for years to come.

For people this really matters to ' the falsely and salaciously accused, for example ' the market already provides solutions. The cost of putting up positive stories and blogs on the Web to clarify the truth is virtually nothing. And if you're too tired from the latest siesta to do it yourself, reputation-management services will happily bury negative search results in a sea of links to newly created positive websites.

The links are still there for the diligent researcher, though, and that's a good thing. Remember, the ultimate goal of sanitizing one's past is to manipulate others, for good or ill. Whether a Spanish entrepreneur hiding the truth about his own past tax evasion, a school board member in Kansas hiding the truth about birds and bees or a party apparatchik hiding the truth about the latest crackdown on democratic protesters in China, conceptually the goal is the same: to change what people think, not by persuading them, but by limiting their access to information. There's something deeply anti-Enlightenment about that idea. It's particularly concerning because far too many around the world would sanitize history as readily as a spring breaker might sanitize his Facebook page after a weekend in Ibiza.

Not Really 'Forgotten'

Another benefit of uncensored Google is that it lets us get a sense of who the people we allow into our lives actually are. If you Google that OkCupid match before setting a date, and nothing too sordid comes up ' or maybe, if it does ' you might feel a bit better about the whole thing. If you learn something that makes you feel the need to exclude that person from your life, well, isn't that the sort of decision we all can make for ourselves?

That's not to say people don't deserve a second chance. In the United States, some criminal records and bankruptcies can be expunged from formal records after a period of time. People change their names and move away. Credit agencies also, by law, entertain challenges to reporting errors. And a California statute passed in 2013 lets minors to scrub their social media histories after they turn 18 ' but the law is narrowly drawn, and applies only to social media posts the minor him- or herself put up. In contrast, the sweeping scope of the European ruling, the significant political and corporate bureaucracy it necessitates and the fact that it essentially conscripts private companies into a quasi-judicial censorship service makes it a decision unlike the Internet has ever seen, at least in the West.

And that might mark the biggest peril of all. This isn't merely a cultural shibboleth, the usual Atlantic gap between loud, NSA-loving, free speechy America and stodgy, privacy-focused, tech-skeptic Old Europe. Calling it a right to be “forgotten” is rosy but fake ' it's more a thuggish right to censor and to silence. Fortunately, it's unlikely that courts in the U.S. will follow Europe's lead. Aside from statutory protections, American courts have found that search engines themselves have a First Amendment right to publish and editorialize search results as they see fit.

In the end, Gonz'lez prevailed in the European Court of Justice, but he may have lost his own war. His name now is linked not just to his tax evasion, but to the much bigger story about the court's ruling on his tax evasion records.

Does that mean Google will soon purge its European search rolls of articles like this one, just because Gonz'lez doesn't want anyone to know about the tax scams he used to pull? The company, which famously threatened to shutter its Chinese domain in 2010 rather than continue censoring its results there, has a lot of thinking to do.

Ben Feuer is a civil appellate attorney with the California Appellate Law Group in San Francisco. He is the chair of the Appellate Section of the Bar Association of San Francisco's Barristers Club and a former Ninth Circuit clerk. He can be reached at [email protected].

Mario Costeja Gonz'lez was a tax cheat. In 1998, years of dodging social security taxes finally caught up with the 43-year-old Spaniard. To pay his tax debt, the government seized the Barcelona resident's condo and threw it on the auction block. The debtor's sale garnered a brief, 36-word mention in the property blotter of a local newspaper, La Vanguardia.

Twelve years later, Gonz'lez was back on top. He built a successful consulting firm and dutifully paid his taxes for more than a decade. But in 2010, La Vanguardia digitized its old articles, opening them up for indexing by search engines. When Gonz'lez searched for himself on Google, he found the short debtor's sale article mentioning his name on the first page of results.

In Europe, search engines are classified as “data collectors” rather than news or media outlets, and the European Union's Charter of Fundamental Rights'guarantees every person the right to “protection of personal data.”

So when Gonz'lez Googled his name and saw the article about his debtor's sale pop up on the first page, he filed an administrative petition seeking to take the article off Google's list.

Google As 'Data Collector'

The Spanish authorities granted his petition, finding that because Google is classified as a data collector rather than a news outlet, it is not subject to protection as a media company. Google appealed, and the case went to the European Court of Justice.

The court's opinion, released in May, found European Union law applies in three ways so sweeping that some say it could “break the [I]nternet,” according to an article on the Harvard University-affiliated Digital Media Law Project website. See, “Will E.U. Court's Privacy Ruling Break the Internet?” The reality is less hyperbolic, but not by leagues.

First, the court held that Google is subject to European data privacy laws based on a subsidiary it keeps in Spain to sell advertising, even though its computing operations are all in the U.S. This basis for jurisdiction sets up a strange regime in which European privacy laws only apply to search engines that keep offices physically in Europe, even though every search engine is equally accessible from within European borders.

Second, the court held that being a data collector makes Google subject to Europe's data privacy laws and it can be held legally responsible for violating those laws based on the content it puts on any user's screen ' even if that content is legal and constitutes nothing more than links to other pages on the Web.

Third, the court held that European data privacy regulations require Google to remove from search results any links to so-called “personal data,” such as a news article, if the person who is a subject of the article claims it is “outdated” or “irrelevant.” Every time any person requests a link to personal data be removed from Google's results, the Internet giant must balance the individual's right of data privacy against the “preponderant interest of the general public” in the information in question.

That's a strange task to demand of a private company, let alone one conceived around algorithms and patents rather than history or philosophy. What does Google know about whether a Web page or news article is “outdated” or “irrelevant” compared to the public interest? Well, it better know something, because the penalty to Google for failing to comply with the court's order could be as much as 2% of its global revenue, some $55 billion in Google's case. That's so even though only websites that compile information from other sources are subject to the court's decision ' the original La Vanguardia article is untouched by the court's ruling, protected as news media.

Removing Data

Also striking is the court's conclusion that personal data includes anything written about a person. That shifts tremendous power from the author of a writing to its subject , even if it's legal and truthful, and makes clear that protection for artistic, literary, cultural and news works is an exception, not the rule. Combined with the court's expansive interpretation of data collector, the ruling likely applies not just to Google and other search engines, but to virtually any website that allows users to post content of their own because that content might include someone's personal data.

So, from Twitter and Instagram to Yahoo and Facebook and the comments sections on forums and blogs, firms that don't produce their own media but merely store what others post could well be subject to the ruling. Is there an e-mail sitting in your personal Gmail inbox that happens to include a link to a censored news article? It's suddenly gone. A photo you posted of your friend to your own Facebook feed three years ago? Adieu!

The biggest paradox in the ruling might be the very notion that a person would care about removing a link that's genuinely “outdated” or “irrelevant.” If the information is actually outdated or irrelevant, why would it matter if it's on the Web? The fact that someone wants to remove a link suggests that at least person thinks it's relevant to something .

This new “right to be forgotten,” as journalists have dubbed it, arises from a French concept, “le droit ' l'oubli,” that better translates as “the right to erasure” or “oblivion.” French and German laws allow some convicted criminals to suppress reference to their names in media publications after serving their punishment. But this is much more expansive, and on its face, the court's ruling presents mostly questions. How tech firms are supposed to step in to a fact-finding and judgment role usually left for courts and juries is a complete mystery. Does the right to remove data apply to companies? Does it apply to links in every language? How long does the search engine have to respond? What if the person first sold his story or published it voluntarily? What if the person is famous or infamous? What if it's spin ' thanks for letting us know that racist slur was a joke, Mr. Sterling, we'll take it off Google now?

Google set up a form to take personal data complaints, and got 12,000 removal requests on the first day. The company says it will have human beings review every request to determine whether it involves “financial scams, professional malpractice, criminal convictions, or public conduct of government officials.” Links to everything else, though ' arrests, news articles, gossip columns, Yelp reviews, angry rants, drunken YouTube videos ' are fair game for censorship. Google says so far it's fielded requests from convicted pedophiles, politicians wanting to run with clean voting histories, a man who had been charged with attempting to kill his family but released on a technicality, a physician who didn't like reviews about him on a ratings website, and thousands more.

Even analyzing the complaints will require huge teams of compliance staff ' not just at Google, but in most tech and media companies in Europe. In an industry where the Next Big Thing might well be a glint in the eye of a 12-year-old girl coding in her parents' suburban Berlin garage, compliance costs could quickly choke European Internet innovation. They will certainly choke European courts, which will need to decide cases on the meaning of this ruling for years to come.

For people this really matters to ' the falsely and salaciously accused, for example ' the market already provides solutions. The cost of putting up positive stories and blogs on the Web to clarify the truth is virtually nothing. And if you're too tired from the latest siesta to do it yourself, reputation-management services will happily bury negative search results in a sea of links to newly created positive websites.

The links are still there for the diligent researcher, though, and that's a good thing. Remember, the ultimate goal of sanitizing one's past is to manipulate others, for good or ill. Whether a Spanish entrepreneur hiding the truth about his own past tax evasion, a school board member in Kansas hiding the truth about birds and bees or a party apparatchik hiding the truth about the latest crackdown on democratic protesters in China, conceptually the goal is the same: to change what people think, not by persuading them, but by limiting their access to information. There's something deeply anti-Enlightenment about that idea. It's particularly concerning because far too many around the world would sanitize history as readily as a spring breaker might sanitize his Facebook page after a weekend in Ibiza.

Not Really 'Forgotten'

Another benefit of uncensored Google is that it lets us get a sense of who the people we allow into our lives actually are. If you Google that OkCupid match before setting a date, and nothing too sordid comes up ' or maybe, if it does ' you might feel a bit better about the whole thing. If you learn something that makes you feel the need to exclude that person from your life, well, isn't that the sort of decision we all can make for ourselves?

That's not to say people don't deserve a second chance. In the United States, some criminal records and bankruptcies can be expunged from formal records after a period of time. People change their names and move away. Credit agencies also, by law, entertain challenges to reporting errors. And a California statute passed in 2013 lets minors to scrub their social media histories after they turn 18 ' but the law is narrowly drawn, and applies only to social media posts the minor him- or herself put up. In contrast, the sweeping scope of the European ruling, the significant political and corporate bureaucracy it necessitates and the fact that it essentially conscripts private companies into a quasi-judicial censorship service makes it a decision unlike the Internet has ever seen, at least in the West.

And that might mark the biggest peril of all. This isn't merely a cultural shibboleth, the usual Atlantic gap between loud, NSA-loving, free speechy America and stodgy, privacy-focused, tech-skeptic Old Europe. Calling it a right to be “forgotten” is rosy but fake ' it's more a thuggish right to censor and to silence. Fortunately, it's unlikely that courts in the U.S. will follow Europe's lead. Aside from statutory protections, American courts have found that search engines themselves have a First Amendment right to publish and editorialize search results as they see fit.

In the end, Gonz'lez prevailed in the European Court of Justice, but he may have lost his own war. His name now is linked not just to his tax evasion, but to the much bigger story about the court's ruling on his tax evasion records.

Does that mean Google will soon purge its European search rolls of articles like this one, just because Gonz'lez doesn't want anyone to know about the tax scams he used to pull? The company, which famously threatened to shutter its Chinese domain in 2010 rather than continue censoring its results there, has a lot of thinking to do.

Ben Feuer is a civil appellate attorney with the California Appellate Law Group in San Francisco. He is the chair of the Appellate Section of the Bar Association of San Francisco's Barristers Club and a former Ninth Circuit clerk. He can be reached at [email protected].