February 10, 2015 by Mark
On February 6, 2015, the Advisory Council to Google on the Right to be Forgotten released its report. Convened to advise Google on how to implement the European Court of Justice’s right to be forgotten decision from May 2014, the Council’s independent members recommended that search engines maintain limited transparency of their delisting decisions and restrict deletions to European search engines.
To be clear, in our view, the European Court of Justice’s decision mandating that search engines remove links to legally published content was a mistake and should be reversed in the future by the European Union. However, there remain implementation questions, which could make things worse if not handled properly.
As I said, in a blog post in July 2014, reasonable people can differ on these implementation questions, but the weight of the argument supports notifying web publishers when their content is delisted from search results and limiting delisting to European search engines.
The arguments on the other side are reasonable. Transparency is usually a good thing, but when the objective is to limit access to information under the European Court’s decision, telling the world about the delisting could have the perverse result of broadcasting the information instead of keeping it secret. This argues for secrecy. Circumventing European search engines is possible and so local deletion could be less than fully effective in preserving privacy. This argues for global delisting.
But these considerations are not the final word. There are countervailing arguments in both cases that should be determinative.
The Council argued that search engines should notify web publishers of their delisting decisions, perhaps even prior to making a decision. As some publishers note, the context in which publication took place is an important element that could help a search engine reach a balanced decision. Web publishers are uniquely situated to provide an understanding of the context of publication, but they can only provide this perspective if they know about a delisting. It is hard to see why this important information should not be taken into account. Getting the delisting decision right is the primary goal; sharing delisting information with web publishers is an effective way to increase the accountability and accuracy of these decisions.
The Council also argued that delisting should remain local. According to Google, 95% of all search queries originating in Europe are on local versions of the search engine. This results from the fact that users seeking search information are automatically directed to a local search engine. So local delisting provides adequate protection and global delisting isn’t really required. Moreover, global delisting would deprive users in other countries of access to information that is perfectly legal under the laws of their country.
The Council was properly concerned that global delisting would not be consistent with the legal principles of proportionality and extraterritoriality. In other contexts, countries concerned about Internet content have allowed that content to appear in other countries, but have insisted that it be blocked in their own countries. There is no reason for Europe to depart from this principle in the case of implementing the European right to be forgotten.
There is no perfect way to implement the European Court of Justice’s decision on the right to be forgotten. Ideally, it should be reversed by future EU action. But as long as it is a legal requirement, notification to web publishers and local delisting is the best way to go. The Advisory Council got it right.
Mark MacCarthy, Senior Vice President, Public Policy at SIIA, directs SIIA’s public policy initiatives in the areas of intellectual property enforcement, information privacy, cybersecurity, cloud computing and the promotion of educational technology. Follow Mark on Twitter at @Mark_MacCarthy.