After the European Court of Justice ruled that there was a “right to be forgotten” from Google’s search results, Google’s Advisory Council embarked on a roadshow aimed at debating the issue. While this debate poses many interesting questions, Google’s agenda is apparent in the way it has answered them – as revealed in the Advisory Council’s recently published report.
Google is clearly feeling European Union pressure at the moment. Despite the firm spending well over a million euros on lobbying Brussels in 2012-13, the EU announced in October 2014 it would seek to break up Google’s search monopoly.
The European Union Court of Justice ruling that led to the “right to be forgotten” has not been an economic problem for Google – after all, the number of removal requests that Google has dealt with is dwarfed by its regular caseload of copyright removal requests.
It might not seem even a burdensome legal issue either, considering the EU Data Protection Regulation that is due to arrive soon would likely make such privacy rights explicit parts of the law – making drawn-out legal cases unnecessary.
However it’s clearly the point at which Google has decided to draw up its front line. Rather than just removing links from search results quietly, Google has tried to stir as much controversy as possible. It highlights at the bottom of search results when links have been removed, and notifies publishers of the linked pages.
This has played particularly well with journalists and caused a nice “censorship” storm. Initially, Google also did little to clarify that it is only search results for specific search terms, rather than actual web pages, that disappear, which might wrongly give the impression that Google had been forced to delete – “censor” – other web sites.
The Advisory Council report is clear on that last issue at least, consistently using the more precise “delisting” instead of “the right to be forgotten”. Google actually admits that its notifications to publishers undermine the spirit of the court ruling by drawing attention to the information removed. However, despite this the Advisory Council recommends continuing this practice to the extent that it is considered legal.
This is dubious, not least in the light of Google’s well-known “don’t be evil” maxim. The court ruling demonstrated the law catching up with privacy ethics: an ethical approach would be to implement it according to the spirit rather than the letter of the law. But in many places in this report, privacy ethics wins out only where it has the law on its side – where it doesn’t, Google’s business interests (bolstered by appeals to freedom of expression) prevail. In doing so Google invents bizarre new “freedoms”, such as the right to use different national versions of Google search.
There is clearly a wider agenda to all this for Google. Throughout the report, the sense is that Google is trying to define an idea of “data protection in the public interest”. This contains novel categories of information such as “information relating to religious discourse”, which Google claims to have a public interest value – and as such should not be deemed sensitive.
Other examples are the artistic presentation of something which should also “weigh against delisting”, according to the report. But in their dissenting minority opinion, those council members who are actually data protection lawyers argue against such ideas.
It’s also surprising that the report does not examine Google’s actual delisting practice in any of the tens of thousands of cases or their justifications – a recommendation made by Cambridge researcher Julia Powles and Oxford professor and Advisory Council member Luciano Floridi. Neither does the report compare these procedures to Google’s delisting practice in other contexts, such as copyright claims, censorship in China, or defamation claims. All this made the exercise a lot more academic than it should have been.
Profits versus privacy
The battle lines are drawn, then, between those wishing to protect personal information – and a firm that is the largest practical gateway to information on the internet. In his minority opinion in the report, council member Frank La Rue – a former UN Rapporteur on Freedom of Expression – said:
We cannot make a difference between the information that exists, on files, official records or newspapers, and that which is obtained through a search engine.
Most of us see them separated by at least Google’s business model that puts advertising income first, and an algorithm which ranks by a notion of “relevance” that is not available to public scrutiny. More regulation weakens Google’s control and compliance cuts into its profits.
On what ground will the next battle be fought? Personal data hiding in big data, and the non-transparent algorithms used by Google and others to influence our lives will certainly be up for discussion.
Let me conclude with a wild suggestion: in the UK, legal remedies have been sought for offensive tweets and revenge porn. What if the politicians get wind of another form of cyberbullying, namely “doxing” – the publishing online of someone’s personal information (and specifically their address) in order to harass and annoy?
Any attempt to legislate against that would run into a certain large internet company through whose website such information is inevitably found. Interesting times ahead, that is certain.