Other Big CJEU Case Says Google Must Put Certain Links At The Top Of Search Results
from the must-carry dept
While most of the attention today was focused on the CJEU “right to be forgotten” ruling concerning global censorship, the court actually released another ruling concerning the right to be forgotten, again around disagreement between French regulators and Google. And, as intermediary liability expert Daphne Keller notes, this ruling may turn out to be more interesting in the long run.
This case involved how Google should deal with “sensitive data,” when it’s a part of a RTBF request. The court does decide that a “notice and takedown” regime makes sense for such sensitive content, which is better than the possible alternative advanced by some: that the law requires Google to pro-actively stop the indexing of such sensitive information (or even to first get consent). The court points out that this wouldn’t make any sense at all, given how search engines work:
In practice, it is scarcely conceivable ? nor, moreover, does it appear from the documents before the Court ? that the operator of a search engine will seek the express consent of data subjects before processing personal data concerning them for the purposes of his referencing activity.
But what really stands out is what appears to be a totally uncalled for random aside by the court towards the end of the ruling:
It must, however, be added that, even if the operator of a search engine were to find that that is not the case because the inclusion of the link in question is strictly necessary for reconciling the data subject?s rights to privacy and protection of personal data with the freedom of information of potentially interested internet users, the operator is in any event required, at the latest on the occasion of the request for de-referencing, to adjust the list of results in such a way that the overall picture it gives the internet user reflects the current legal position, which means in particular that links to web pages containing information on that point must appear in first place on the list.
This seems like it could be a very big deal. It’s the court saying that Google is required to make sure that top search results “reflects the current legal position.” In other words, if someone was exonerated after being accused of a crime, that must now be the top link. As Keller notes, this is going to have some strange consequences that probably won’t be very good:
– If the top results on searches for the data subject's name would otherwise not be about the criminal case, this creates a serious Streisand effect.
– This invites all kinds of abuse by SEOs and reputation management companies.
— Daphne Keller (@daphnehk) September 24, 2019
Having a court come in and tell a search engine what is “required” to be the top search result, tossed off without much detail or thought in a world where getting certain links to certain places on search engines is literally an entire industry, is going to have pretty significant consequences — nearly all of them I can guarantee you the court did not even begin to think about.