Google, González and Globe24h
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.
Globe24h
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.
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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.
I agree that the EU decision appears to be putting us on the route back to practical obscurity. If we are pining for those ‘good old days’, could we achieve a better balance if all search engines were required to do was alter their algorithm to ‘bury’ these results on the last page? Then the information would still be ‘available’, but it wouldn’t be the first thing people would see, and would require some digging to find it. Perhaps that would be a better digital equivalent to practical obscurity. In a way, the EU decision already takes a step in this direction, as the target in the case was Google, not the actual host of the material. I agree that trying to cut the links to the information, rather than deleting the information itself, is the preferable approach.
Realistically, though, it seems to me that given the very nature of the internet, there will always be sites like Globe24h seeking to profit from others’ misadventures. I don’t think we can obtain practical obscurity on the web with the way it currently works. I think a technological solution, rather than a legal one, would be necessary; we would need to change the actual technical architecture of the internet and the way information is stored and retrieved. But that still wouldn’t stop the neighbourhood gossip…
As Colin suggested (if I read him right), the real solution to some of the problems, notably the Globe 24h problem, is not to put so much information out there in the first place. French courts routinely identfy cases by initials only. Some Canadian family law cases are so reported.
Public bodies like courts have to cut back on the amount of identifying information they publish – and not just in the name of the decision. This was recognized by the Canadian Judicial Council’s document on electronic court records back about 2005 – some discipline is needed to set and meet new standards on the topic.
For me, one of the main problems with the European judgment is the subtlety of the analysis of each individual request for suppression of links that Google (or other search engine subject to European law – which is not all of them) would have to make. How much time and effort and information is needed to make it? Would the rational search engine just delete links routinely, thus frequently suppressing access to information that should be available? (It’s a parallel to web sites removing content alleged to violate copyright, rather than analyzing the allegation – what’s in it for them, to fight?)
Thanks for joining in the discussion, Melanie and John.
Yes, John, you read me right.
When it comes to material originating from the courts, we have to start thinking of “the internet” as beginning the moment a judge shares a final draft of her ruling with her clerk. From that point, the objective is (and should be) to make that material available for legitimate uses. Accordingly, in the absence of an explicit or legislated public restriction, the only sustainable personal privacy protection approach for public documents like court judgments derives from the exclusion of personal information at the time it is written. Any other control placed on dissemination and publication is capable of being by-passed by someone intent on doing so.
A document in the hands of the parties, of law libraries, of law societies, of journalists, of legal publishers or of any body else with direct access to the source, is equally *capable* of being shared, copied and distributed. Email and fax are still actively used by participants in the justice system to circulate these documents, so the appearance of those document on websites (court, CanLII, news organizations or other) merely expands the accessibility and contributes to the probability that it will be seen by someone without a direct connection to a party without direct access to the original. In the context of a Supreme Court of Canada ruling, society considers rapid and widespread dissemination a very good thing. To the extent the document in question is, for example, a Provincial Court ruling dealing with a public figure in matters of public interest, most would also agree that the immediate availability of that document to the world is equally important and necessary.
That said, we may also collectively agree that access to highly sensitive family matters warrant a much different approach given the risk of harm and embarrassment and the absence of an overriding public interest in favour of public access. So the question becomes, at what point do we introduce the different approach? If you believe that “the internet” begins when the document is released by the judge, I suggest it can only mean that the desired publication and dissemination standard must be understood at the time it is released…and, ideally, that the judge has taken full account of the public interest in the details of the case at the time the ruling is written.
Google launches “right to be forgotten” request form. Thanks to Dan Pinnington for sharing this discovery.
Story here: http://www.pcmag.com/article2/0,2817,2458736,00.asp
Link to the form here: https://support.google.com/legal/contact/lr_eudpa?product=websearch
Not everyone deserves to be forgotten. I got a judgment a decade ago against a car salesman who forged my client’s name, a judgment readily available on CanLii but which does not turn up in a Google search of the salesman’s name. Not surprisingly, he is back in business.
It seems as if all of the content related to globe24 is about old guilts and crimes never ‘forgotten’ nor ‘forgiven’.. yet exposed
Where are the concerns for the innocents?
As a witness and the victim of a violent crime – that was never shared with my own social circle-
the shock and sick horror of finding that a search of my own rare and unique name(not the one above) drew not only only this old information –could not be any more personal; horrific or shaming, but attached to searches/links of family members & relatives who shared the same last name.
I wished to be dead.
I changed my name.
a Search of the perpetrators’ name showed Nothing –he was off scott-free