Could Swaziland have better search returns than the UK?

Mark Leiser: I am a PhD Candidate in Cyber Law at the University of Strathclyde in Glasgow. I have written submissions for the Leveson Inquiry into the culture and ethics of the media and for the Scottish Parliament on the use of social media during trials. My PhD is supervised by Professor Andrew Murray at the London School of Economics and focuses on the effectiveness of cyber-regulation. My research and interests revolve around main areas of Internet law and policy including internet governance & regulation, democracy, social media, privacy, and intellectual property. My PhD research focuses on developing a system of modelling to measure the effectiveness and legitimacy of Internet Regulation. I write in a personal capacity.

There is a great irony in last week’s ruling from the Grand Chamber of the European Court of Justice: the one man who wanted the right to be forgotten will forever be remembered for bringing a case to the European courts to fight for that right. Mario Costeja Gonzalez certainly set the world of cyber law alight. Much legal analysis of the judgement has been provided elsewhere so I wanted to focus on a couple of issues that seemed to have been glossed over by the mainstream press and legal commentators.

There are three major issues here. First of all, the claimant was a lawyer that had a series of debts that had been reported. Mr Gonzalez, a lawyer, took issue with the fact that when someone searched for his name on Google they could see this information. Gonzalez had argued that, as these debts had since been satisfied, they were no longer relevant. The Grand Chamber agreed with him and ruled that we had the “right to forget”, and as a consequence data collectors have to remove links to information that are irrelevant or out of date.

As a lawyer, Gonzalez is regulated by the Spanish law society (Consejo General de la Abogacía Española). Solicitors have standards imposed on them by their regulatory body, including strict financial disclosure and reporting requirements. I imagine that the Spanish law society would take umbrage to the notion that an article highlighting historical indiscretions should be deemed irrelevant or not in the public interest. Transparency and disclosure are two fundamental concepts behind self-regulatory bodies like law societies and consumer protection is one of the most important functions of a law society. Because the integrity of the legal profession is based on these concepts, the court has set a very low standard indeed for what is to be considered “irrelevant”.

Had Gonzalez been a regular guy, there may have been a stronger argument for determining what is outdated, irrelevant and not in the public interest. If the general public cannot search for background information on the financial integrity of the solicitors they wish to hire, how can law societies and other professional bodies fully protect the consumer? Perhaps the court should have endorsed Gonzalez’s claim that he personally had the right to be forgotten, but set a much higher standard by choosing in favour of a claimant with far greater “irrelevance” than a solicitor trying to hide a history of less than perfect financial management.

Another issue that no one seems to want to tackle is the practical application of this ruling. Imagine the following sentence within a much longer article: “From Jimmy Savile’s disgusting abuse of children to Mr Gonzalez’s financial mismanagement, we are suffering a moral bankruptcy in this country and lack of accountability.” Now imagine this is written into an editorial in a newspaper which is copied and pasted into blogs based in the UK. The ruling effectively means that Google and Data Protection Agencies have to determine the relevance of the public interest. Anyone searching for the terms “Mr Gonzalez” could not find the listing in the returned listings Google posts. But neither would someone searching for “Jimmy Savile” and “abuse”, which highlights Google’s role as gatekeeper in the digital experience.

Finally, privacy advocates like my friend the UEA lecturer Paul Bernal fall back on the position that “the courts will have to sort these things out”. While this may be true (and Paul does this in his blog on the right to be forgotten), reality must be even more frightening for Paul and Co – the market sorting this out themselves leaving the Internet even more fragmented.

Firstly, Gonzalez had the resources to bring this to court, as did Max Mosley in his quest to have embarrassing photos of him removed from Google search. With the balancing test activated at the moment of request to take-down, who is more likely to argue successfully that the information at question is “irrelevant” or “out of date", Mosley’s lawyers or the average punter in the street?

Let’s look at what happens with another framework where the search engine has to respond to complaints: defamation.

Imagine someone writes a blog about you in which they post something defamatory. You can send a notification to Google to remove the content on the basis of the UK's defamation laws. Google’s liability exists from the moment it receives notification of the possible defamation. However, Google “dot com” has servers based in the US and does not come under the UK's jurisdiction. It is feasible that you can remove defamatory search results from .co.uk but they continue to appear on the .com version of the same site. The .co.uk search results may include a “chilling effects” notification – meaning that the take down has been recorded and could be published there, without indexing it by Google. Of course, in cases of defamation, Google can’t go on evidence treks to evaluate the comments alleged to be defamatory, so it tends to remove the link from its search results in order to avoid liability. Notice-and-take-down almost always results in takedown, hence the concerns about the “chilling effects” of copyright and defamation claims and copyright infringing claims processed largely by automation.

A possible consequence of this is that we are now going to have multiple types of Google. The search returns that people get when accessing Google.com and those who are searching from the UK and Europe. Google already shows different search returns to people searching for Tiananmen Square from China, and those searching from the US. Does this suggest that the European Courts have accidentally formed a new American market for search? “Pay us and we will give you true, uncensored search results?”

There has long been a difference in search results dependent on locales. Search for holocaust denial propaganda from a French site or to purchase Nazi memorabilia from a German site and the returns will look very different. Google's writing platform, Blogger, is heavily censored depending on the locale accessing the page from. What remains unclear is whether courts will seek to block access to Google.com from within the jurisdiction or whether residents will be restricted to the localised site only. Regardless, the courts will be restricting access to free information (I imagine Google will challenge any google.com restriction on 1st Amendment constitutional grounds) or if the localised site is subject to the restriction then we have the potential over time to have a very different looking google.co.uk than google.com.

Why is this important? Gonzalez may not care about access to the article via Google in Swaziland, but would Swaziland’s citizens be likely to google Gonzalez? Probably not. Conversely, is it not conceivable that an interested public in Spain might want to have access? The alternative becomes reality – the privacy impact will have increased largely in proportion to the amount of people that can access. The net/balance might be the same in Spain and in Swaziland, suggesting that a worldwide block is the only thing to do. On the flip side, if the worldwide block is not feasible, then the outcome would be that Swaziland could have more accurate search returns than a Spanish person searching for the same thing would.

This brings me back to Paul’s blog. Search is fundamental and regardless of internet archives and newspapers storing their stories, when we are looking for information we use search. We don’t go into individual news sites and search for terms. When was the last time you asked yourself "I wonder if there are any stories about David Cameron today on the Daily Mail?"). No you Google David Cameron instead. Google is also a valuable resource for finding people who are parts of communities and/or experiences. We use Google to find information about “abuse” and “Jimmy Savile” to determine if there are other people out there who may have gone through something similar.

The fact that the information “is still there” simply isn’t good enough and is a fundamental threat to free speech. If you want to see what passive censorship looks like, think of the card catalogue in the library. I am old enough to remember when you searched for the book’s location by looking it up by flicking through rows of cards and then used the Dewey Decimal System to traipse around the library until you found the item you were looking for. Now imagine someone going to the court, claiming that information in the book was out of date or irrelevant, and then the library being forced to remove the card from the card catalogue collection. The book is still on the shelves, but the information as to where to find it has been removed.

Google is the card catalogue of the internet. It is fundamental to accessing information. It is crucial to accessing things about the past and looking for others that have experienced similar experiences. Google should challenge every aspect of this ruling. It is standing up for free speech in the face of an excessive over-reaction to privacy advocates everywhere. It should fight in the courts. It should fight in the market. It should fight this ruling everywhere.

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