New EU Lawsuit Claims Google Failed To Forget 'Sensitive' Information, Such As Their 'Political Affiliation'

from the oh-come-on dept

For years, we’ve pointed out that the “Right to be Forgotten” (RTBF) in Europe is a dangerous tool that has been and will continue to be abused as a tool to censor freedom of expression, while hiding behind a claim that it is to protect “privacy.” While the concept has been around for a while, it really took off online with a EU Court of Justice (CJEU) ruling from three years ago, saying that Google’s search results index counted as a data repository on someone, and thus, an individual could force Google to “delink” certain results from searches on their names. But, the court left some leeway to Google to decide whether or not the requests were valid. Basically, if the information is no longer relevant for the public to know about the person, then Google should delink it. Now, obviously, that’s a horribly subjective standard, and Google has had to staff up on people to determine whether or not any requested delinking qualifies.

Part of the problem with all of this is that it seems to produce tremendous liability. Fail to get a delinking request “right” and Google is right back in court, which is exactly where we are today. Google has rejected just under 60% of requests to delink info in Europe, and four individuals in France were so upset by this, that they complained that their rights were being violated. The French data protection regulator, CNIL, actually agreed with Google that the information shouldn’t be “forgotten.” However, the four have appealed their case, and it’s been kicked back to the European Court of Justice. The four individuals are claiming that the information is “sensitive data” and are suggesting that just being “sensitive data” alone is enough to require forgetting — no matter what the “public interest” may be in that info.

As Google has noted in a blog post, there are serious questions here about whether or not people can hide information from their past that may be relevant:

The CJEU now has to decide whether “sensitive personal data”?such as the political allegiance of an individual, or a past criminal conviction reported in the press?should always outweigh the public interest.

The tricky thing with this kind of information is that it is often important for people to know and it is frequently reported in newspapers and elsewhere. Requiring automatic delisting from search engines, without any public interest balancing test, risks creating a dangerous loophole. Such a loophole would enable anyone to demand removal of links that should remain up in the public interest, simply by claiming they contain some element of sensitive personal data.

While that is an important point — equally important is the question of how this can be massively damaging for basically any other company, that doesn’t have Google’s legal team and resources to fight. The fact that anyone disagreeing with your decision on a RTBF request can put a company at risk for failing to delete something, and take them to court repeatedly, means that most companies are going to default to deleting.

At least with things like the DMCA notice-and-takedown provision — which is already massively and widely abused to censor content — there are fairly clear and strict rules about how a takedown notice works, and what it requires. With the RTBF, it’s not at all clear, and risks significant and repeated litigation. As it stands, the system is a recipe for widespread censorship of often important information.

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Comments on “New EU Lawsuit Claims Google Failed To Forget 'Sensitive' Information, Such As Their 'Political Affiliation'”

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21 Comments
Theo Chino (profile) says:

Once regular New Yorkers activist discover what Cy is about they don't endorse.

If you have not seeing this: https://www.youtube.com/watch?v=k1X6gdWCS18 (Watch the DA not getting endorsed.)

The only way this Encryption debate will stop is that people do not sign petitions with CyVance name on it.

You can help the fight by asking that New Yorkers do not vote any petition where Cy Vance is listed.

Anonymous Coward says:

We have too much memory installed!

Only the most ostrich-like individual(s) can think that deleting a reference is the same as removing the actual item of interest. Print newspapers carried the article in question, perhaps over several days – shall we march into every libary and make them cut out of the pages each offending article? Oh wait – how will they find the articles, if the references have been eliminated?

Same for TV newscasts. They are recorded and archived ad nauseum – shall we storm The Wayback Machine and make them remove material that they didn’t post? After all, it was placed there by other parties… for future reference, should the desire arise?

The list goes on, but the bottom line for an open-minded person should be – isn’t this censorship, pure and simple? And if it’s done for personal reasons now, what’s to prevent corporations from stepping up to the plate and demanding that their reputations be ‘cleaned up’ so that their stockholders don’t lose money?

I don’t know about anyone else, but I truly do appreciate how these people made it to adult-hood when they don’t understand basic numbers. All of the foregoing is posted to YouTube, at something greater than 100 hours of it each and every minute of the day, 60/24/365. I’ve yet to see a court move that fast.

Cowardly Lion says:

Re: We have too much memory installed!

All good points. Also, the focus seems to be on Google, however most of the news sites I go on have their own internal search engines. For example Techdirt has one. It begs the question to what nth degree are these muttonheads going to demand delisting?

Techdirt called this one when it first raised it’s ugly head; it was a horrible idea that was never going to work.

Also, Google should be at least be billing the European Commission for their delisting efforts. Say $45 per delisting. It’d soon stop.

That One Guy (profile) says:

Re: Re: We have too much memory installed!

Also, the focus seems to be on Google, however most of the news sites I go on have their own internal search engines.

Two, not necessarily exclusive possibilities there:

While that is an important point — equally important is the question of how this can be massively damaging for basically any other company, that doesn’t have Google’s legal team and resources to fight.

A) Other companies faced with these orders simply do not have the resources to fight back, and so end up folding pretty much by default, and no-one hears about it was a result.

B) Once you’ve forced a company with the resources of Google to fold, then you’ve set a precedent that can be easily used against any smaller company. If Google can be forced to comply, it becomes trivial to go to the individual sites and force them to as well.

James Burkhardt (profile) says:

Re: We have too much memory installed!

Well, to be clear, the entire reason the court was willing to agree this wasn’t censorship is that the actual content, the actual articles or websites with the informtion are NOT removed. The plaintiffs argued that Google was acting similarly to a “data repository” (like the ones maintained by private companies that provide the background checks used by mots priate businesses). As such, Google was required to ‘delist’ information that was no longer ‘relevant’. Looking at it from this perspective, if you rule that google is in fact a ‘data repository’, then the RTBF rule makes sense. You don’t remove the factual data, you just stop including a reference to it in the file, so there is no censorship.

That’s the only reason this ruling got through – it didn’t get rid of the underlying data.

Its till a bad ruling, and one that, if this lawsuit goes through, will likely lead to the death of the internet in any recognizable modern form.

Wendy Cockcroft (user link) says:

Re: The other side

I’ll play Devil’s Advocate for a minute:

suppose you commit a crime such as shoplifting at the age of sixteen and it’s reported in the local paper, which has an internet presence. You’re caught, punished, and subsequently experience an epiphany that causes you to radically change your attitude. Hallelujah! You have seen the light and will thieve no more. Fast forward to when you’re twenty or so and looking for a job in customer service. Your name is not particularly common and you haven’t moved from where you live so that conviction is still trending near the top of the search results on your name. If your prospective employer does a search on the internet to find out what sort of person he or she is hiring this could prove a problem, even if your conviction is spent and you’re no longer obliged to admit to it in job applications, right?

There’s your problem.

Okay, back to my current stance: de-listing doesn’t necessarily make it go away; if a local blogger or your peers have posted links to the article in the paper and they decide to re-post them for whatever reason, the links will re-index, so you’re back to square one. You could ask the paper to delete the article (who is going to bother to trawl through old papers in a library just to check you out?), but they are unlikely to do that. If they do, however, your shame is hidden as the details are gone now.

Okay, that seems reasonable, you’re a reformed, law-abiding citizen now. However, it is also the thin end of the wedge: we’ve already had convicted paedophiles trying to get records of their crimes delisted.

The fact is, however unpalatable and irrelevant the information about you is, it’ll always be available somewhere. You can never truly get rid of it. So… what do you do about it? I’ve got a few ideas here:

http://on-t-internet.blogspot.co.uk/2015/11/how-to-resurrect-your-reputation-five.html

Manok says:

Just comply 100% and the problem will be fixed.

Just give Europe what they want and comply with any request. All references to Hitler, Stalin, Churchill, Queen Elizabeth, all current politicians, artists, etc will then soon get scrubbed. Perhaps someone could file a request on behalf of Jesus too.

Let’s see how they then like them apples.

DannyB (profile) says:

Other sensitive information must also be removed

Setting aside the absurdity that Google is “remember” anything rather than merely linking to it; Google should also “forget” other sensitive information such as the person’s gender. After all, the person may want to change their gender. Multiple times. Google may not be able to keep up with the changes and would link to out of date information. The person may not want the public to remember that last week they were the other gender, and the week before that something different.

Anonymous Coward says:

Were I making decisions at Google, I’d do a “blackout” like they did to protest SOPA. You want to see what a “right to be forgotten” really looks like? How about we “forget” about all of Europe for a day, see how much European revenues and traffic for online news and media tank. That “right to be forgotten” is probably one of the most ill conceived and stupidest ideas to come out of Europe in a long time.

The rest of the EU should probably ask Spain just how badly things like this can come back and bite one on the ass.

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