In one of my original reactions to the Google Spain ruling on the Right to be Forgotten, which I wrote for The Justice Gap, I said this, about Google’s response to the ruling.:
“How they respond to the ruling will be interesting – for the moment they’re saying very little. They have creative minds working for them – if they can rise to the challenge and find a way to comply with the ruling that enables ordinary people to take back a little control, that could be a very good thing. If, instead, they retrench and withdraw – or go over the top in allowing censorship too easily, it could be very bad.”
From what I’ve seen so far, it looks as though they’ve taken the ‘over the top’ approach, and are allowing censorship too easily. Two particular stories have come out today, one from the Guardian (here), the other from the BBC (here). In both cases, the journalists concerned are high profile, influential and expert – James Ball at the Guardian and Robert Peston at the BBC – and the stories, to be frank, do not seem to fall within the categories that the CJEU ruling in the Google Spain case suggested might be suitable for the right to apply. James Ball’s stories were mostly pretty recent – from 2010 and 2011 – as well as being fairly easy to argue as being ‘relevant’ in terms of public interest. Robert Peston’s stories are not so recent, but even more clearly relevant and in the public interest.
So why have they been caught by Google’s net as appropriate for the ‘right to be forgotten’? It looks very much as though this is the intentional overreaction that I was concerned about in my original posting for the Justice Gap. They’re trying to say, I think, ‘you know, we were right! This ruling means censorship! This is dangerous!’ They’re also trying to get journalists like James Ball and Robert Peston to be on their side, not on the side of the CJEU – and in Ball’s case, at least, they seem to be succeeding to an extent. Peston is more critical, saying that Google’s implementation of the ruling ‘looks odd, perhaps clumsy.’
Clumsy or intentional?
I’m not convinced that it’s clumsy at all, but intentional. I hope I’m wrong, and that, as Google themselves have said, they will be refining the method and sorting out the details. If they’re really trying to fight this, to prove that the ruling is unworkable, we’re in for some serious trouble, because the ruling will not be at all easy to reverse. Rather the opposite – and the wheels of the European legal system grind very slowly, so the fight and the mess could be protracted.
What’s more, what this should really highlight for people is not just the problem with the Google Spain ruling, but the huge power that Google already wields – because, ultimately, it is Google that is doing this ‘censorship’, not the court ruling. And Google does similar things already, though without such a fanfare, in relation to copyright protection, links to things like obscene content and so forth. Google already are acting like censors, if you see it that way, and without the drama of the right to be forgotten.
What can we do now?
In the meantime, people will develop coping mechanisms – or find ways to bypass Google’s European search systems, either going straight to google.com or using alternatives like duckduckgo, or even not using search at all, because there are other ways to find information such as crowdsourcing via Twitter. The more people use these, the more they’ll like them, and the more they’ll move away from Google. I hope that Google see this, and find a more productive way forward than this excessive, clumsy implementation of the ruling. What’s more, I hope they engage positively and actively with the reform process for the Data Protection Regime – because a well executed reform, with a better written and more appropriate version of the right to be forgotten (or even better, the right to erasure) is the ultimate solution here. If that can be brought in soon – rather than delayed or undermined – then we can all move on from the Google Spain ruling, both legally and practically. I think everyone might benefit from that.
Paul Bernal's Blog 
it seems to be intentional also if they wanted a anti-EU overreaction its seems to be working
http://www.dailymail.co.uk/news/article-2678376/Google-deletes-MailOnline-searches-lying-referee-right-forgotten-kicks-European-searches.html
I imagine it wouldn’t be difficult to have got the DM going though 😉 I wonder if this could be viewed through competition rules by Europe though – google have had a habit of getting on the wrong side of them from time to time.
Maybe google need to show good faith by offering a way to query or challenge removals (maybe before they go live), but I’m with Paul on this one so not really holding my breath..
If google left their search results completely unfiltered, it would solve the problem in one fell swoop.
Whatever was searched for would be found, if it was there.
It should be down to ISPs to implement various levels of government filtering. In the UK, as well as the traditional list of banned sites, they are now filtering all legal porn, file sharing sites, and forums, until the account holder asks for the block to be lifted.
People might argue that unfiltering google, might allow access to truly despicable and illegal content. My argument is that, like drugs, if people want it they will get it. And, like file sharing websites, ISPs can provide the govt. with names of customers that access such content.
Also, if the google bots are able to crawl these bad sites, and their presence becomes known about, isn’t it then easier to shut them down, inform law enforcement etc.?
I don’t think this is a Google / Bing etc. problem, but a problem that should be addressed by ISPs, Hosting companies and DNS servers. If all truly objectionable content were unhosted or filtered by ISPs then it wouldn’t matter what google find and display, because you can only visit the site if it passes through the ISP filter.
Having perfectly legal stuff removed because it embarrasses you is pathetic. If you can’t do the time, don’t do the crime.
To be somewhat contrarian, Google’s response has at least got people discussing where the right balance between privacy and public interest lies: a decision that as far as I can see the ECJ ducked, even in the specific case that was before it. And those whose articles are being ‘forgotten’ are being told, so if there’s a possibility of appealing then they at least know to go look for it. I’d have been even more concerned if Google were ‘forgetting’ links silently 😦
Yes, they’ve certainly opened up the discussion – which is a good thing – even if they’ve opened it up with a salvo that seems to be intended to push the discussion in one particular direction. I’d like the discussion to continue into the discussion of the reform of the data protection regime….
Yup – maybe this will make legislators and others think a little more carefully about the complexities behind RtBF sloganising? It’s Friday, so I can be optimistic 😉
Thanks for the interesting perspective Paul. The notification of search removals to webmasters and the disclaimers at the bottom of most natural person searches certainly aids Google’s efforts to highlight the information restricting nature of this right which is under current law is not formally styled the “right to be forgotten” but rather the right to erasure/blocking and the right to object (Art. 12 (b) and Art. 14 of the Data Protection Directive). I strongly suspect Google took this fact into account when adopting both these procedures. I seriously doubt, however, that the actual removals highlighted have been strategic in the way you suggest – the lack of clear guidelines and the sheer quantity of requests alone makes it almost certain that a number of idiosyncratic and inconsistent judgments will be made at least initially.
I’m currently not convinced either way – though the history of Google’s interventions, from public pronouncements like ‘unless you let us retain our search logs millions will die from swine flu’ and Peter Fleischer’s blog posts, to the serious levels of lobbying I’ve witnessed at the CPDP and PLSC conferences leads me to think that Google will use any means necessary to make their points. I suspect we may never know how deliberate it was – but the backlash over their over blocking, and their immediate reversal of some of that blocking, suggests that people are more aware than I thought they might be.
No ! Google is not overreacting with right to be forgotten rule in EU. They did this according to the EU court law as they don’t want to do so..but here is the main fact about Google, its worlds most popular search engine who manages so many things and it is not as easy as we think.