Google recently informed European data protection authorities (DPAs) that, in addition to removing search results from all European domains of Google Search, Google would soon begin using geo-location technology to additionally restrict access to search results that have been delisted in response to European privacy requests. This is a sensible step to allay DPA concerns about the balance of a right to privacy and freedom of information and should satisfy those in Europe calling for full global removals without impeding access to information outside of Europe.
Of course, the right to be forgotten is a terrible idea – at least in the form in which the European Court of Justice imposed it on European search engines in May 2014. That decision instructed search engines not to return results derived from a search on a person’s name when the data “appear to be inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed.”
In making this judgment, the Court treated privacy rights as fundamental and other rights as mere secondary interests. But there is a fundamental human right on the other side of the right to privacy - the right to freedom of expression, recognized in Article 11 of the Charter of the Fundamental Rights of the European Union, which includes the “freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” If people cannot get information in response to a search query then their right to receive information without interference seems to be compromised.
The Court sidestepped this conflict between rights to free expression and rights to privacy by the simple expedient of denying that free expression is involved at all. Search engines have “economic interests” and Internet users have “legitimate interests” in providing and receiving access to information on the Internet. But these are treated as merely interests, not themselves as fundamental rights like privacy and data protection.
More worrisome was the approach of some data protection authorities that this right to be forgotten jurisprudence should rule the world. The idea was that no one in the world should be allowed to retrieve the information that European search engines had determined was subject to the right to be forgotten because if other people could access that information then so could Europeans. Echoes of Turkey trying to impose worldwide bans on YouTube videos that denigrated Turkishness could be heard in these ideas, and Google properly resisted.
But a technical solution appears to allow a compromise. Turkey was ultimately persuaded to allow YouTube to geo-block content that was sensitive in Turkey, but allow it to remain available in the rest of the world. This technique is widely used to deal with sensitive content around the world – from alcohol ads not appearing in Saudi Arabia to anti-Muslim videos that incite violence in certain countries.
Since summer of 2014, Google has delisted affected search results on all European top-level domains such as Google.de or Google.fr. This certainly achieved the goal of restricting content for Europeans while allowing it to remain available in other users in other parts of the world. This ensured that if someone searched on any European domain from anywhere in the world, the European right to be forgotten rules would apply; but if non-Europeans searched on their own country specific domains, search results would still be available.
But DPAs and some European courts have felt the approach wasn’t completely effective. Although less than 3% of European users perform searches on Google Search on domains other than their country domain, critics argued that the ability to access the information on another domain meant that only delisting on European domains was not sufficient. So, in response to this concern, Google will now geo-restrict access based on signals such as IP address to ensure that if Google delists a search result because of a request from an individual in Spain, for example, that result would not appear in search results for anybody searching from Spain, regardless of Google domain.
Nothing is perfect in this world, and this is especially so when implementing a policy that is a bad idea to begin with. But this compromise takes another step toward protecting what EU regulators see as European privacy rights without adversely affecting the free flow of information in the rest of the world.