[Sarit Mizrahi assisted in the preparation of this column.]
By now, we’ve all heard about the Google Spain SL, Google Inc. v. Agencia Española de Protección de Datos (AEPD), Mario Costeja González decision rendered last May by the Court of Justice of the European Union (CJEU). However, for those who’ve been living under the proverbial rock, let us go over the facts:
A complaint was lodged with the Spanish Data Protection Authority (“AEPD”) by Mr. Gonzalez on March 5, 2010 against a Spanish newspaper publisher, Google Spain and Google Inc. due to the fact that, when his name was searched in Google’s search engine, two articles appeared, dating back to 1998, regarding certain financial troubles the gentleman was experiencing at the time. Mr. Gonzalez requested that the information in question be removed both from the site of the publisher who emitted the original content as well as from Google’s search engine results, for the reason that his monetary issues as described in these articles had already been resolved for several years and were thus no longer relevant.
The AEPD having ruled in favour of Mr. Gonzalez, the publisher in question as well as Google Spain and Google Inc. appealed to the Spanish National High Court, who in turn referred certain questions about data protection arising from the case to the CJEU. In a May 13, 2014, preliminary ruling, the CJEU held that an individual is entitled to demand that the operator of a search engine remove links toward information relating to that person when a search is performed using his name, and that the search engine operator is required to do so if the information in question “[appears] to be inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which [it was] processed and in the light of the time that has elapsed”. In this manner, the CJEU has thus upheld the existence of a “right to be forgotten”.
It will be interesting to see how search engines in general, and Google in particular, will ultimately chose to address the requests that have already started coming in by the thousands. In fact, Google has opted to hold public hearings on the topic in the coming weeks.
For now, Google has put in place a “search removal request” page where it briefly explains the CJEU’s decision, the possibility for an individual to ask that links to their personal information be removed, and the manner in which Google will evaluate such demands. The page itself consists of a form that must be filled out by the individual where he or she must supply the following information: (1) name used to search, (2) full name of requester, (3) contact e-mail address, (4) URLs for results they want removed, (5) an explanation of why those results are irrelevant, out-dated, or otherwise objectionable, and (6) a legible copy of a document that verifies the individual’s identity so as to allow Google to ensure the authenticity of his or her request.
Obviously, the fact that a private company has been given the task of deciding whether or not certain data should be made public, when that is normally a role played by the courts, is very peculiar to say the least. However, as the goal of those invoking their right to be forgotten is for their information to be stricken from the public record, court proceedings seem ill adapted. In fact, as many a commenter has mentioned, it’s somewhat ironic that, because of this landmark case, Mr. Gonzáles is now world famous for wanting to become inconspicuous.
That being said, even if we do believe that the courts are probably not the best forum to resolve such disputes, we also believe, as others have pointed out, that forcing search engine providers to remove links to out-dated information requires them to assess the private nature of the data which would essentially alter their role from a mere intermediary to a content editor.
So why not outsource the decision-making process to third-party online dispute resolution (ODR) providers? As was addressed by George Friedman, ODR seems perfectly suited to resolve “right to be forgotten” disputes as (1) the relation between the parties is and will remain virtual, and (2) online processes are more convenient than court proceedings. We could expand on these two observations in much detail, but, as we’ve done so in previous posts, we’ll simply outline some of the advantages ODR could offer “right to be forgotten” disputes, some of which were also alluded to in George Friedman’s above-mentioned post.
As we see it, a “right to be forgotten” ODR process would have the individual who wants content to be unreferenced by Google log on to a platform and explain which link(s) lead to pages he deems to constitute an affront to his right to be forgotten, and why. An email would then be sent to the alleged offending website’s administrator inviting him to take part in the ODR process. Parties would subsequently be invited to negotiate the removal of the link using online tools and, should said negotiations fail, try to reach a mediated agreement or, in worse case scenarios, have an arbitrator decide on the outcome. If said outcome (be it arrived at through negotiation, mediation, or arbitration) is that Google should no longer reference the link, then a message could be sent to the search engine’s administrators indicating which content should no longer be referenced.
This would ensure a fast and inexpensive way of settling claims, very often without the need for a third party to get involved. It would also ensure that those who invoke their “right to be forgotten” will have access to a truly fair and neutral process where the parties will have their say, unlike the current situation where Google’s search removal request page does not offer many details as to how the site will make its decision, or any dispute resolution policy that would be used in the event that it makes a decision that the individual would like to contest (although an appeal process is said to be available).
Having a third-party ODR provider handle the requests would also have the advantage of eliminating potential or apparent conflicts of interest should an AdWords subscriber be behind the problematic link. In such cases, if Google refuses to stop referencing a URL, even if the decision to do so is the correct one, it could be perceived as taking the side of a corporation funding its business.
In fact, it should be noted that Germany, one of the first members in the EU to give any clear sign of how its government will react to the CJEU’s decision, appears to be considering the creation of “cyber courts” to rule on cases arising out of issues between individuals and search engines over the right to be forgotten. The reason they are leaning towards this position is that they do not believe that such judgments should be left entirely up to Google.
So, to sum things up, ODR would offer a faster and cheaper dispute resolution mechanism than the courts, while insuring a process where parties could be heard by a neutral third party should they be unable to settle matters on their own, making the system more transparent and fair than the status quo.
Of course, some commenters might point to failed ODR experiments in the field of consumer disputes as an argument against a “right to be forgotten” ODR solution. After all, the success of such a system hinges on both parties being willing to take part in the process. However, unlike consumer dispute platforms that have difficulty convincing sellers to take part in the mediation process, “right to be forgotten” disputes have a built in failsafe to ensure that websites will participate. Like eBay has the power to exclude uncooperative sellers if they refuse to submit to its ODR system, Google could threaten to stop referencing renegade websites. As the search engine is considered to be the primary portal to the Internet for most users, this would basically spell the end of said sites.
Furthermore, since Google, wouldn’t base its decision to stop referencing a site on objectionable content, but rather on the website administrator’s refusal to take part in the ODR process, it would retain its argument that it doesn’t act as a content editor.
Google’s current “right to be forgotten” consultations started on Tuesday, September 9th, in Madrid and should end on November 4th, in Brussels. It will be interesting to see if and how ODR is brought up during these consultations and, if so, how Google will react to such a proposition.