Ominous 'Right to be Forgotten' Case With Global Consequences Heads to Europe's Highest Court

Photo: AP
Photo: AP

Following the laws of individual nations becomes a hell of a conundrum when your business fundamentally has no borders. But recent court cases are threatening to make the situation even more difficult by demanding that a country’s laws be honored by companies like Google all around the world. On Wednesday, an ongoing case with terrifying implications was kicked up to the European Union’s highest court.

Back in 2014, European courts ruled that Google had to respect the “right to be forgotten,” a set of guidelines that allow citizens to request the removal of certain search results in their home country if the linked page features their name. The rules stipulate that Google has to comply with a request if the link is outdated, irrelevant, or violates the citizen’s privacy. It was a foolish ruling that ignores the way the internet works and is effectively rewriting history.

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But that wasn’t enough for France’s top privacy watchdog. In 2015, The Commission Nationale de l’Informatique et des Libertés (CNIL) told Google that it would have to remove the search results across all of its websites.

The particulars here are a little tricky. Let’s say that someone in France files a removal request that’s approved. Google will then remove that link on google.fr and all of its other sites in the EU. It will also ensure that anyone searching any Google site from within France will not see the link on any of its sites. That doesn’t apply to other countries within the EU. Someone in Germany could go to google.com, and the link might show up in the search results. But the CNIL has insisted that the link must be removed across all of Google’s sites for all users around the world. When Google refused to comply with the regulator, it was fined $112,000 by the French government. A ruling by the French court on the subsequent appeal has been delayed until the highest court in the European Union decides on the legality of CNIL’s demands.

Part of CNIL’s argument relied on the fact that someone in France could just use proxy services to find the removed links. Google’s lawyers have countered that the original system, “is perfectly effective unless you want to be a fraudster.” In other words, the search giant is arguing that if a person is capable of abusing a system, but a company is perfectly compliant with the system, the company isn’t responsible for that person’s abuse.

Google has complied with the basic compromise that it agreed to in 2014 and it claims in its transparency reports to have removed 590,000 links over the last few years. While it wasn’t thrilled about the initial ruling, it has adopted the view that each country has a right to its own laws. As a Google spokesperson put it in an email to Gizmodo, “For the last 18 months, we’ve been defending the idea that each country should be able to balance freedom of expression and privacy in the way that it chooses, not in the way that another country chooses.”

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That’s the core issue at play in this case. It’s just one of many recent instances in which governments have charged ahead with their own requirements while ignoring the global repercussions. In June, the Canadian Supreme Court ruled that Google can be forced to remove links globally. The ruling applies to all search engines, as does the EUs right to be forgotten. Google can’t appeal the Canadian case, but it can ask for alterations to the order if it can demonstrate that the ruling violates the laws of other countries, such as the protection of free speech.

The $112,000 fine that was levied in 2016 was a one time penalty that was designed to spur Google into action. The potential consequences for Google refusing to comply if they lose the case are unclear.

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[Bloomberg, Wall Street Journal]

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DISCUSSION

gramercypolice
gramercypolice

It was a foolish ruling that ignores the way the internet works and is effectively rewriting history.

Why shouldn’t a court ruling ignore the way the internet works? If a nation has a privacy law, why should that law be expected to accommodate or exempt a for-profit entity because of how that company operates within a technical network design? I don’t like the ruling in that case, but tech people always seem to think the law should make exceptions for them so they can maximize profits, when, in this case the court is maximizing privacy of its citizens.

The internet’s original design is not well suited to the 21st century, from DNS servers to peering hubs to accommodating video streams and privacy and the virtual absence of security, it’s a hit of a shitshow. Good enough for the 20th century, but not so great now. Courts can’t help the weaknesses built into the internet.

People write laws, and just because the Peter Thiels of the world believe the law should contort itself to exempt or accommodate the tech industry’s belief in its own primacy, a case like this can show that the law is not about what is easy or good for Google, but it should be about what is good for the people affected by technology. You can assert that the principle behind the right to be forgotten is a myth and an illusion, but that’s different from saying the ruling is bad because it’s too hard for Google to comply. The level of difficulty is irrelevant.