Wednesday

26th Sep 2018

Google faces no EU-level fines if it ignores 'right to be forgotten' verdict

  • The European Court of Justice won't impose a fine if Google does not follow EU law on the 'right to be forgotten' (Photo: Alfonso Salgueiro)

Google won’t risk financial penalties from the EU’s top court if it chooses to ignore a recent ‘right to be forgotten’ judgement.

“The [European] Court of Justice has no power to fine a company in this context, competition law yes, but not here,” a contact at the Luxembourg-based legal arbiter told this website on Thursday (15 May).

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Fines would instead be handed out at member state level.

The Court earlier this week clarified how national courts need to interpret the right from a two-decade old EU directive on data protection.

The decision means people in the EU can ask Google and any other search operator to remove content deemed out-dated or irrelevant.

It is final and cannot be appealed by the US-based company.

The Court’s decision can only change if the EU law is modified.

The case stems back to 2012 when Spanish citizen Mario Costeja Gonzalez filed a complaint against Google.

Gonzalez demanded Google filter out his name from search queries linked to the repossession of his homes in a story first published in the Spanish newspaper La Vanguardia.

The Court agreed with Gonzalez.

Vilified and celebrated

The verdict has been both vilified and celebrated by pro-rights civil society groups.

The London-based Index on Censorship says it will “open up the flood gates” with the BBC reporting the US internet giant has already received ‘right to be forgotten’ requests from a paedophile and a British former politician seeking re-election.

“Somebody who has an embarrassing photo, we are not saying ‘tough luck to them’, there should be a way for them to mitigate their damages but this particular case (the Gonzalez case) was in effect a public notice,” said Sean Gallagher at the pro-transparency NGO.

Gallagher warned the implications could be severe because the requests block people from accessing something that was on the public record and not something that was slanderous or libellous.

He said the ruling means Gonzalez could also request Google to remove the Court’s own judgement on the case which mentions his name from the search results if he so chose.

The right to privacy, according to the verdict, is now more important than the right for the public to be informed, noted Gallagher.

The BBC cited Wikipedia founder Jimmy Wales describing the decision as "one of the most wide-sweeping internet censorship rulings that I've ever seen".

He said the Court's verdict makes no sense.

Not everyone agrees.

Joe McNamee, the director of European Digital Rights, a Brussels-based NGO, said that even though the balance is in favour of the right to privacy there are “undefined circumstances” where this is not the case.

He pointed out Google already engages in extensive removal of links from its search service.

Last year, the company pulled 214 million links from its search engine out of a total of 235 million requests, he noted.

“Google chose to remove these search results globally, even though they have not been subject to any legal process outside the US,” he said in an email.

Some are concerned the ruling could create a system where people in the US would be able to access information on the search engine no longer visible in the EU.

But McNamee pointed out Google already de-indexes on a national level on the basis of various legal and ad hoc agreements.

“It removes, for example, sites accused of hate speech in Google.de, but leaves them available via Google.com,” he said.

EU data protection reform

EU legislators, for their part, are overhauling the 1995 directive.

The European Commission upgraded it to a regulation in 2012, backed by the European Parliament, but negotiations are stuck among member states.

The reformed regulation says people can have their data removed when there are no legitimate grounds for retaining it.

It also states data can be retained “where it is necessary for historical, statistical and scientific (...) purposes”.

Public interest in the area of public health, freedom of expression, and other exemptions are given when the data should be kept alive.

The Greek EU presidency, for its part, has yet to decide whether to include the Court’s verdict as an agenda item at the June meeting on data protection.

“Now with the Court ruling, it might make things, depending on the reaction of member states, either more difficult or easier,” said Greek EU presidency spokesperson Alexandros Vidouris.

Last year, both Spain and Germany suggested that people may abuse the right to be forgotten “with fraudulent intent” when it comes to finances.

Austria, Estonia, France and Ireland, for their part, welcomed the right in the new legislation.

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