Romania joined the European Union in 2007. Accordingly, its citizens can presumably benefit from the recent ruling of the Court of Justice of the EU compelling search engines to comply in certain circumstances with requests from individuals to “de-link” search results where their privacy interests are implicated. But what rights, if any, are possessed by a Canadian who carries out a vanity Google search of their name and discovers that a Romanian website has republished personal details from a Canadian court case that is on the internet, yet “practically obscure” through its unlinked presence on CanLII? This is the story of Globe24h.
The EU ruling came about through an action commenced several years earlier in Spain by Mario Costeja González, an attorney concerned with the impact on his reputation of a Google search that turned up links to a newspaper website and an account, published in 1998, of a real estate auction then underway in connection with proceedings related to recovery of his social security debts. Mr. González argued that as the matter had long been settled, the stories were “irrelevant” and continued access and dissemination of those links compromised his personal data protection rights and dignity. He pursued both the newspaper and Google, seeking, among other things, that each take whatever steps and employ whatever tools are required to prevent these pages from being found by search engines or from appearing in search results.
The EU ruling has been hailed and criticized, with many wondering what comes next. As is now well understood, if it’s not on Google, it might as well not exist – a reality that will please those seeking to defend their privacy interests and personal dignity from unwanted exposure through sanitization of search results. However, search results are effectively a presentation of links to material published elsewhere and as our own Supreme Court noted in the context of liability for defamatory publications, an internet bereft of links is not much of an internet at all:
The Internet cannot, in short, provide access to information without hyperlinks. Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression.
This website, based in Romania, could charitably be described as a content farm, but could more accurately be described by much, much harsher and deeply unflattering terms. Its homepage consists of sitemap of sorts with a topical list of content buried deep within the site, all of which has been “acquired” from dozens of other sources and republished here.
The site FAQs declare a benevolent intent, that of open access and making legal information available for free, but the site is neither limited to public legal information nor does it offer any meaningful way of accessing the content. Ultimately, Globe24h site content is only discoverable through Google.
As described in recent Financial Post and CBC stories, the real purpose of the site appears to be extract payment from people anxious to have content redacted. 19 euros, in fact. The site operator purports to comply with Romanian and EU privacy directives and is willing to redact personally identifying information for free – all you need to do is send a letter (by post only, no email) and wait up to 12 months.
Faced with this option, is it any wonder people looking to protect their privacy interests are turning to Google?
How do we balance our interests in an open internet, open courts, open access to law with the protection of privacy?
These are hardly new issues. A search within Slaw alone finds recurring consideration of this question. A few examples:
- A Chat With Chris Berzins on Administrative Tribunals, Privacy and the Practical Obscurity of Information (July 2010)
- Immovable Object, Meet Irresistible Force (July 2012)
- The Price of Open and Free (May 2013)
- Privacy and an Open Administrative Justice System (August 2013)
In the last of this list, written by Ian Mackenzie (an arbitrator and adjudicator of prominence with experience on both human rights and workplace safety boards), we find the classic arguments raised by those struggling to find the balance. It’s an excellent round-up and well worth a read. For now I will highlight just one excerpt – this quote from a Karen Eltis paper:
Not surprisingly then, sacrificing participants’ right to dignity and privacy in the justice process for the illusion of transparency, coupled with a significant loss of judicial control over how and what information is disseminated online, eventually risks fostering a disinclination to participate in the justice process. Thus, paradoxically, the very access to justice paperless records were meant to enhance, is undermined.
If privacy is more broadly understood as deriving from human dignity then it can be viewed as a facilitator rather than detractor of accessibility and comport with the court’s various duties (to foster transparency and to protect litigants and control its documents). In other words, judges would presumably be more inclined to use their discretion to protect litigants’ (and other participants’) privacy if doing so would not be regarded as sacrificing openness or transparency but rather as a facilitator of access and enabler of court control over its records. Those litigants and witnesses who are confident that their personal information will not be indiscriminately exposed, surely have greater incentive to participate in the justice system than those dreading humiliation, intimidation, or retribution that not even the court itself can manage.
One of the ways CanLII, other legal publishers, and Canadian courts and tribunals have sought to promote the benefits of open access via the internet to the judgments of the courts while minimizing the risk of the negatives identified by Professor Eltis is through shielding the content from Google and other search engines. Quite simply, through metadata tags on our web-accessible documents, we ask that they refrain from crawling, caching and indexing the content so that it is not discoverable by search engines. Google and the reputable search engines generally comply. However, when content is scraped and reposted on a webpage that does not contain similar metadata tags, the content is discoverable to Google.
On learning that Globe24h had reposted content from CanLII and was demanding payment from individuals seeking to protect their privacy interests, one of the steps we took was to ask Google to de-link the Globe24h search results. Google declined our request.
While the EU decision is not binding or in any way formally applicable to the legal environment governing privacy matters in Canada, or to Google’s treatment of Canadian-originated search requests, the concept of privacy-through-google-obscurity will no doubt be debated on our shores.
I am very curious to hear your thoughts on whether this approach has merit as a means of contributing to the balance of interests inherent in promoting open courts in the internet era.