I’m not feeling lucky: The “Right to Be Forgotten” ruling puts Google inside a box

“How should one person’s right to be forgotten be balanced with the public’s right to know?”
This is the question that Google is asking to its users with an open form which allows the general public to offer its advice. This happens in a moment that the first effects of the decision of the European Court of Justice (ECJ) two months ago, which gives people the right to ask search engines like Google to remove results for queries that include their name, are becoming visible.

Now the Mountain View, California-based giant, struggles with handling the ECJ’s diktat and the sea of requests received every day. And through this question the world’s biggest search-engine company demonstrates that it is not only good at giving answers, but also at asking questions. Because basically it’s not possible to give an answer here. Or, well, I am not able at least.

One step back. Last May, the European Court of Justice has backed the “right to be forgotten” and told Google to delete “inadequate, irrelevant or no longer relevant” data from its results when a member of the public openly requests it. The issue started when a Spanish man, Mario Costeja González, brought a privacy case to the ECJ after he failed to secure the deletion of an auction notice of his repossessed home, which was still visible at the time on the website of a newspaper in Catalonia, since 1998.

An interesting case, for sure, and also a good chance to try to put ourselves in this gentleman’s shoes, in a situation that he described as a fight “for the elimination of data that adversely affects people’s honour, dignity and exposes their private lives”. Google spokesmen openly demonstrated their disappointment for the decision at first, saying that would have been required “to take time to analyse the implications.” After that, Google’s key people frequently declared that they were doing “their best” to try to accomodate the ECJ’s directions.

And here we are. After two months, Google now seems to be on the spotlight with this complicated matter. Google says it has received more than 70,000 takedown requests since May, covering 250,000 webpages, something that was depicted by Google itself as “a huge task”.This huge task recently seemed to be even bigger, when earlier this month Google removed the links to several journalistic articles from the Guardian, the Daily Mail, the BBC and other British news outlet and then made a U-turn.

After having received notice from Google that some of their content was being removed from search results on some European versions of the search engine, those British media have been informed that the links have been finally reinstated. So Google has basically acknowledged that it “incorrectly” removed links to those articles, and is now looking for new solutions to follow the ECJ’s rules. One of these new “solutions” is for instance the form that invites Google users to submit their thoughts and feedback on the ECJ’s mandate for the Right To Be Forgotten. The Mountain View giant has also informed that a board of experts was set up in order to gather contributions on the matter.

This is the result of the massive confusion contained in the European Court’s ruling, in my opinion. The ECJ has indeed found that people have the right to ask for information to be removed from search results that include their names if it is “inadequate, irrelevant or no longer relevant, or excessive”, as said. Well, isn’t this incredibly vague and subjective? That’s why I truly believe it’s basically not possible to give an adequate answer to Google’s question.

On top of that keep in mind that, while deciding what to remove, search engines must also have a “regard to the public interest”, as requested by the Court of Justice. Now, it’s undeniable that the ECJ has -although indirectly- established that a search engine like Google must be regarded as a sort of “data controller” with the right to decide whether something is or is not of public interest. And please note that this is allowed in a territory, excuse me, in a market, where Google sells advertising spaces, where Google promotes its activities, where Google makes money. Many data protection lawyers said the ruling takes Google far from a formal “neutral intermediary” status. And that’s why I ask: is this what we really want? Is this ruling, as it is right now, what we really need? In my opinion there’s a lot to do in order to make this act way more equal and useful in terms of public interest.

Among those who think that there’s still a lot to do and to talk about there’s one of the experts of the Google’s council. His name is David Drummond and he also serves as senior Vice President, corporate development and chief legal officer for Google. Mr. Drummond has recently become a bit more famous after he has written a column for the Guardian, in which he openly declares his disagreement with the ruling. In the article he also adds that the ruling negatively restricts the public’s ability to exercise free expression in the continent-state.

And this is exactly where I want to start to give a conclusion to my already-long article. As I said in the beginning, I don’t really know how to reply to Google’s question. I can only say that it’s not possible at the moment, where a good balance between privacy protection and freedom of expression does not exist. All I know is that when there’s the risk of some kind of censorship under discussion, we all should be very careful. And that in a Union where the freedom of expression is one of the main pillars, a perfect balance between the people’s right to privacy and the people’s right to know must be guaranteed.