Earlier this month Google announced its committee of Google-selected “experts” who are sitting in public judgement on Europe’s so-called ‘right to be forgotten’ (RTBF) ruling — by interrogating privacy-related issues, holding public meetings, banging the debate drum and generally doing the work of a public policy think tank at Google’s behest.
Think of it as an outsourcing of public policymaking instigated by a commercially driven entity. Which, when you do think of it that way underlines exactly what the problem is here. Bottom line: this is about Google lobbying the European Commission, which is in the process of more widely reforming data protection legislation, by creating its own privacy debate forum to grab attention and exert pressure for regulatory reform.
It should be noted that the council is made up of a couple of Google employees (Eric Schmidt and David Drummond) and a larger number of independent experts — in fields such as data protection law, philosophy and ethics, media pluralism and regulation, some of whom may well be more sympathetic to Google’s views here than others (although some are very sympathetic, such as Wikipedia’s Jimmy Wales, who has already spoken out against the RTBF ruling). The entire strategic endeavor is of Google’s making, though, so should be viewed in that context.
For those catching up, the RTBF refers to a European Court Of Justice ruling back in May which determined that private individuals have a right to request that search engines de-index links to “outdated” or “irrelevant” information about them. Google is by far the dominant search engine in Europe, and it has so far received around 91,000 requests for links to be de-indexed.
The advisory council, as Google terms it, has now made a formal request for “public comments and evidence” on the RTBF ruling — via, you guessed it, another webform. The deadline for filing submissions in this way is August 11.
Specific questions the council says it’s going to be considering include:
- Are there any procedural issues raised by the case (e.g., responsibilities of search engines, data protection authorities,, publishers, individuals)?
- What is the nature and delineation of a public figure’s right to privacy?
- How should we differentiate content in the public interest from content that is not?
- Does the public have a right to information about the nature, volume, and outcome of removal requests made to search engines?
- What is the public’s right to information when it comes to reviews of professional or consumer services? Or criminal histories?
- Should individuals be able to request removal of links to information published by a government?
- Do publishers of content have a right to information about requests to remove it from search?
Submissions will be “evaluated” by the council, according to the webform page, in order to inform its choice of witnesses who will be asked to provide evidence in person at a series of council meetings to be held around Europe over the coming months.
The initial public meeting schedule for Google’s advisory council is as follows:
- September 9 in Madrid, Spain
- September 10 in Rome, Italy
- September 25 in Paris, France
- September 30 in Warsaw, Poland
- October 14 in Berlin, Germany
- October 16 in London, UK
- TBD in November or December: Brussels
Expect the noise level generated by the council to ramp up over the coming months as it holds public meetings and interrogates witnesses. Of course it’s possible some of the witnesses and some of the debate won’t align with Google’s views here, but it’s still in Google’s interests to generate debate around a ruling that it does not agree with. The alternative — going quietly into that goodnight by accepting the ruling sans comment — is not exactly a lobbying strategy.
Also today in rtbf-related news, a UK House of Lords committee has dubbed the European ruling as “unworkable” — and claimed it is responsible for creating an “unreasonable situation”.
Chairman of the Sub-Committee, Baroness Prashar, said the HoL committee’s judgement is based on the view that the ruling does not take into account the effect on smaller search engines — “which, unlike Google, are unlikely to have the resources to process the thousands of removal requests they are likely to receive”.
The committee also objects on the grounds that it is “wrong in principle to leave search engines themselves the task of deciding whether to delete information or not, based on vague, ambiguous and unhelpful criteria”.
In a statement, Prashar went further — apparently concluding that individual privacy rights are no longer practically enforceable given technological advances and the vast scale of digital businesses’ data-harvesting practices.
“We think there is a very strong argument that, in the new Regulation, search engines should not be classed as data controllers, and therefore not liable as ‘owners’ of the information they are linking to. We also do not believe that individuals should have a right to have links to accurate and lawfully available information about them removed, simply because they do not like what is said,” she said.
“Technology advances at ever increasing speeds and it is incredibly difficult for legislation to keep up – never mind ‘future proof’ – the unforeseen leaps that technology is bound to make. However, what we can do is ensure that the Regulations and Directives that we do draft are sensible, taking into account the current situation and the likelihood of ever-increasing amounts of available data, and decide not to try and enforce the impossible.”
That view seems rather unbalanced, not least when you consider that individual privacy is apparently possible in UK law when individuals have the money to pay for it. For example, in the case of super injunctions taken out by celebrities wishing certain of their actions do not come to light.
Another hint, perhaps, that privacy is at risk of becoming a luxury good in the data retention era — that only the super wealthy will be able to afford.