Google Seeks To Shape Public Debate On Europe’s Right To Be Forgotten Ruling

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Google has now announced the full complement of Google-selected “experts” who will be sitting on an advisory committee it has established to help navigate the decision-making process in the wake of the so-called right to be forgotten ruling in Europe.

It has published some names of committee members before, but there are some new additions being confirmed today.

Back in May, the European Court of Justice ruled that private individuals living in the European Union have the right, under European data protection law dating back to 1995, to ask search engines to de-index search results that are associated with their name if the information being flagged up is outdated or irrelevant.

Today, Google noted it has received removal requests “on all sorts of content” — listing the likes of “serious criminal records, embarrassing photos, instances of online bullying and name-calling, decades-old allegations, negative press stories, and more”.

The full complement of Google’s advisory committee on the RTBF issue is as follows:

  • Luciano Floridi — Professor of Philosophy and Ethics of Information at the University of Oxford, Senior Research Fellow and Director of Research at the Oxford Internet Institute, with research interests in the philosophy of information, the ethics of information, computer ethics, and the philosophy of technology
  • Sylvie Kauffmann — Editorial director at the French newspaper Le Monde, and also a contributing writer for the International New York Times Opinion section.
  • Lidia Kolucka-Zuk — A Yale World Fellow 2013 at Yale University. A lawyer by training, who has served as Executive Director for the Warsaw-based Trust for Civil Society in Central and Eastern Europe, and worked as a strategic advisor to the Polish Prime Minister on issues of state efficiency, reforms in the judicial and legal sectors and the creation of digital society in Poland.
  • Frank La Rue — UN Special Rapporteur for the Promotion and Protection of the Right to Freedom of Opinion and Expression of the UNHRC.
  • José-Luis Piñar — Doctor in Law. Former Director of the Spanish Data Protection Agency (2002-2007). Former Vice-Chairman of the European Group of Data Protection Commissioners (“Art. 29 Working Party Data Protection”) (2003-2007), Founder (2003) and former President of the Ibero-American Data Protection Network (2003-2007). Professor of Administrative Law, and Vice-Rector of International Relations at San Pablo-CEU University of Madrid. Founding partner at Piñar Mañas & Asociados Law Firm. He has published numerous works on data protection law including social networks and children’s privacy, and ECJ case law on the right to protection of personal data, in “BNA International. World Data Protection Report.” José-Luis was a member of the Expert’s Commission created by the Spanish Government for studying and analysing the Spanish Draft of Transparency and Access to Public Information Law.
  • Sabine Leutheusser-Schnarrenberger — A member of the German parliament for over 23 years and has served as the German Federal Justice Minister for a total of 8 years. Also a member of the Parliamentary Assembly on the Council of Europe for 7 years, where she was engaged in defending and protecting human rights—including the right to privacy, laid down in the European Convention on Human Rights as well as in UN conventions.
  • Peggy Valcke — Research professor at KU Leuven in Belgium, part-time professor at the European University Institute in Florence, Italy, and visiting professor at the University of Tilburg in the Netherlands. Her areas of expertise include legal aspects of media innovation, media pluralism, and the interaction between media/telecommunications regulation and competition law, and her research has included addressing media power, user-generated content, internet regulation, mobile and online television, e-publishing and online journalism, public service broadcasting and state aid, co- and self-regulation in the media, privacy in electronic communications and social networks.
  • Jimmy Wales — Founder and Chair Emeritus, Board of Trustees, Wikimedia Foundation, the non-profit corporation that operates the Wikipedia free online encyclopaedia and several other wiki projects. Founder, Wikia.com.
  • Eric Schmidt — Chairman of Google.
  • David C. Drummond — Senior vice president, corporate development and chief legal officer of Google.

Google started granting RTBF requests at the end of last month, but some of the early decisions it made looked a little un-thought-through, to put it charitably, given that Google subsequently reversed some of its de-indexing decisions. (A less charitable analysis is that Google is doing everything it can to make the law look unworkable – not least by making sure media outlets are made aware when it de-indexes a link to a story on their site, which has triggered a rash of articles declaiming the ruling as censorship.)

It’s fair to say that, so far, the application of RTBF requests has generated a media storm of outrage about ‘censorship’ of search results — a response that clearly chimes with Google’s own agenda.

Today, Google takes the next step in its strategy to manage the ECJ ruling, by convening a panel of experts who it says will weigh in on the issue its behalf to “help inform our evolving policies in this area”– and likely also encourage the public to weigh in.

Google said the council will hold public consultations in Europe this fall, which it said it intends to stream live and record, and will subsequently publish its findings.

It adds:

The council will also invite contributions from government, business, media, academia, the technology sector, data protection organizations and other organizations with a particular interest in the area, to surface and discuss the challenging issues at the intersection of the right to know and the right to privacy.

We also hope the Advisory Council’s findings will also be useful to others that may be affected by the court’s ruling. We all have a shared interest in giving proper effect to the Court’s decision, finding the best possible balance on this issue.

We already know the views of one member of the committee, Jimmy Wales, who told TechCrunch last month that the RTBF ruling is a “terrible danger”, and called for a First Amendment style US provision to be implemented into European law to protect free speech.

But it’s fair to say that Google has sought a balance of views for the committee as a whole – something it should be noted that Wales himself called for — with independent experts in data protection law, philosophy and ethics, media pluralism and regulation who may not be quite as sympathetic to Google’s view as Wales is, or indeed as the two insider Mountain View members (Schmidt and Drummond) obviously are.

What remains to be seen is how much influence these other members of the committee will have on Google’s decision-making processes and policies in this area, given that the company has a fully formed opinion on the RTBF ruling already. Some committee members may be at risk of sitting in seats merely to lend credibility to a process of anti-European data protection law lobbying — couched as public debate. (Although, given that at least some of the consultations are going to be held in public, there will hopefully be a chance to hear all views aired, not just those that chime with Google’s own.)

Google’s Drummond published an opinion piece in the Guardian newspaper yesterday, acknowledging that the RTBF is a “complex” issue, and characterizing Google’s disagreement with the ruling as being on freedom of expression and opinion grounds, and because of the discrepancy it creates — whereby someone could find an article on a news website but would not be able to find that same article on Google.

He didn’t, of course, make any specific mention of Google’s ad-fueled business in explaining Mountain View’s opposition to the ruling, but the fact Google is a business with commercial interests to defend is a key part of what’s at stake here.

Bottom line: Google benefits from more information being public and searchable on Google, and from people viewing its search engine as a comprehensive index of information available on the Internet. Both are potentially threatened if private individuals have some say in how Google’s index can function as it relates to their personal information.

Although Drummond admitted there are “no easy answers” to what he described as a “complex issue” in his Guardian piece, in the same article he also cherrypicked some less nuanced examples (such as “former politicians wanting posts removed that criticise their policies in office” and “serious, violent criminals asking for articles about their crimes to be deleted”) — painting the debate in Google’s primary colours.

What’s clear is that Google is couching its legal duty in making RTBF decisions as an either-or requirement to “weigh, on a case-by-case basis, an individual’s right to be forgotten with the public’s right to know”. However that mischaracterizes what’s at stake here, because the ruling was always about the rights of private individuals, and specifically not about helping public figures edit their public record.

In addition to announcing its full complement of advising experts today, Google is also soliciting public views on the ruling — with an online form asking people to “tell us your thoughts” — but again it has boiled the complexities down to an oversimplified question that seeks to shape the kind of responses Google gets from a public petition so it can pile pressure on law-makers, by saying ‘oh look, the public says the law is an ass too’.

Google is asking: “How should one person’s right to be forgotten be balanced with the public’s right to know?”

Another, less self-serving, way to pose the question for the public might be: “Should un-famous people have the right to remove old irrelevant links?”

Or even: “Can the rights of private individuals be protected from Google’s business interests?”