Other Big CJEU Case Says Google Must Put Certain Links At The Top Of Search Results

from the must-carry dept

While most of the attention today was focused on the CJEU "right to be forgotten" ruling concerning global censorship, the court actually released another ruling concerning the right to be forgotten, again around disagreement between French regulators and Google. And, as intermediary liability expert Daphne Keller notes, this ruling may turn out to be more interesting in the long run.

This case involved how Google should deal with "sensitive data," when it's a part of a RTBF request. The court does decide that a "notice and takedown" regime makes sense for such sensitive content, which is better than the possible alternative advanced by some: that the law requires Google to pro-actively stop the indexing of such sensitive information (or even to first get consent). The court points out that this wouldn't make any sense at all, given how search engines work:

In practice, it is scarcely conceivable — nor, moreover, does it appear from the documents before the Court — that the operator of a search engine will seek the express consent of data subjects before processing personal data concerning them for the purposes of his referencing activity.

But what really stands out is what appears to be a totally uncalled for random aside by the court towards the end of the ruling:

It must, however, be added that, even if the operator of a search engine were to find that that is not the case because the inclusion of the link in question is strictly necessary for reconciling the data subject’s rights to privacy and protection of personal data with the freedom of information of potentially interested internet users, the operator is in any event required, at the latest on the occasion of the request for de-referencing, to adjust the list of results in such a way that the overall picture it gives the internet user reflects the current legal position, which means in particular that links to web pages containing information on that point must appear in first place on the list.

This seems like it could be a very big deal. It's the court saying that Google is required to make sure that top search results "reflects the current legal position." In other words, if someone was exonerated after being accused of a crime, that must now be the top link. As Keller notes, this is going to have some strange consequences that probably won't be very good:

Having a court come in and tell a search engine what is "required" to be the top search result, tossed off without much detail or thought in a world where getting certain links to certain places on search engines is literally an entire industry, is going to have pretty significant consequences -- nearly all of them I can guarantee you the court did not even begin to think about.

Filed Under: cjeu, cnil, eu, links, must carry, right to be forgotten, rtbf, search engines, search results, seo
Companies: google

That Was Quick: Thomas Goolnik Already Gets Google To Forget Our Latest Story About Thomas Goolnik Getting Google To Forget Stories About Thomas Goolnik

from the thomas-goolnik-thomas-goolnik-thomas-goolnik dept

Okay, let's start with this even higher up this time:

1. Dear Google RTBF reviewer (who I'm sure will be reading this soon): Under the terms of the GDPR, you are only supposed to agree to a content removal if what we are publishing is "personal data" that is no longer necessary, and (importantly, please read this, guys) that is not "for exercising the right of freedom of expression and information" or "for archiving purposes in the public interest, scientific or historical research purposes...." This post, like the last few, are news stories that are in the public interest, specifically about how someone is abusing the GDPR's "right to erasure" process to delete news reports about his abuse of the GDPR "right to erasure" process. This story is not about anything earlier that Thomas Goolnik may or may not have done. It is about what he did within the last few days. It is not old. It is not no longer relevant. It is directly relevant, and this post should not be subject to any GDPR right to erasure claims.
2. Dear Thomas Goolnik: Seriously dude? How much longer is this going to go on? It is legal for a news report to mention your name. We're not even talking about the original thing you want forgotten. We're talking about what you've been up to the past few years trying to get everyone to forget the thing you want forgotten. Maybe let it go.

Right. So if the rest of you hadn't guessed by now, Thomas Goolnik has, once again, successfully convinced Google to "erase" our most recent article about Thomas Goolnik getting Google to delete a previous article about Thomas Goolnik getting Google to delete a previous article about Thomas Goolnik getting Google to delete a previous article from its search results on the name Thomas Goolnik in the EU.

Even if one were to agree that the original articles he wanted delisted from searches under his name (which began with a NY Times article from 2002, which we don't believe should have been delisted under the RTBF guidelines in the EU), the fact that Goolnik continues to get more modern articles about his abuse of the RTBF process delisted seems problematic. It seems like the sort of thing that is very much in the public interest to monitor and report on, seeing as many supporters of the GDPR insist that the RTBF process would not, in fact, be used to censor news stories. It is being used to do exactly that.

Filed Under: eu, right to be forgotten, rtbf, thomas goolnik, thomas goolnik thomas goolnik, thomas goolnik thomas goolnik thomas goolnik, thomas goolnik thomas goolnik thomas goolnik thomas goolnik, thomas goolnik thomas goolnik thomas goolnik thomas goolnik thomas
Companies: google

EU Court Adviser Says Google Shouldn't Have To Enforce A French RTBF Request Anywhere But In Europe

from the jurisdictional-limitation-is-not-exactly-a-novel-concept dept

The "Right to Be Forgotten" -- a European construct that allows people to erase their internet history at the drop of a takedown request -- should only apply in countries affected by the law. That would seem to be obvious but, so far, it hasn't played out that way. There has been insistence by a few judges and governments that delisting orders should cover anywhere Google's search engine can be used, rather than just in the originating country.

The abusable system has led to questionable delisting requests, which almost always results in the person making the dubious request generating even more URLs to target with the next round of takedowns. That's the nature of the internet, and that's why some judges think content delisted in one country should be made unavailable everywhere in the world.

For a while, it appeared the EU was inclined to agree with French regulators who believed they should be able to control the distribution of content worldwide from an office in Paris. Fortunately, it doesn't appear these regulators will get to control the internet. Reuters reports the EU court is probably going to end up siding with Google in this dispute.

Google can limit the “right to be forgotten” to internet searches made in the European Union, an adviser to the bloc’s top court said on Thursday, backing an appeal by the U.S. search giant against a French fine.

Now, this isn't guaranteed to happen. The Reuters report notes the EU Court normally follows the advice of its legal advisers, but not always. The French government doesn't appear willing to back down, despite this recommendation.

France’s CNIL data protection authority said it noted the opinion and restated its view that the right to privacy should apply regardless of the geographical origin of the person doing an internet search.

This "right" should be watched closely and exercised cautiously. Its short history shows this hasn't been the case. Google is compliant with most requests it receives, but there are still a number of bad faith efforts making their way through the system. Just like DMCA notices, some RTBF requests target legitimate and newsworthy content solely for the purpose of making embarrassing or inconvenient facts vanish from the web. Allowing a European country to control the world's search results will do little more than encourage further abuse.

Filed Under: censorship, cjeu, eu, eu advocate general, eu court of justice, free speech, global rtbf, jurisdiction, right to be forgotten, rtbf
Companies: google

Now Twitter's 'Report' Function Being Used To Disappear Complaint About GDPR Being Used To Disappear Public Court Document

from the so-that's-great dept

Just recently we wrote about how a guy in France, Michael Francois Bujaldon, who had been sued in the US and accused of securities and real estate fraud, had apparently been using the GDPR's right to be forgotten features to get the court docket about this lawsuit deleted from the web (in at least one case) or have his name removed from it (in the other). Our story focused on the situation with the website PlainSite, which is run by Aaron Greenspan and hosts tons of public court dockets. In our comments, it was interesting to note that at least one person seemed hellbent on trashing Greenspan. Greenspan and I have had our own differences throughout the years, and he has been a vocal critic of the way I've covered him in the past, but these comments seemed to go way over the line.

And now, Greenspan informs me that someone is trying to get his original tweet -- which alerted me to this abuse of the GDPR to delete public documents -- disappeared from the internet as well. On Wednesday morning Greenspan discovered that both his PlainSite Twitter account and his personal Twitter account were "limited" due to reports. It's unclear why his personal account was limited, but Twitter told him that his original tweet about Bujaldon violated its rules on "posting personal information."

It is difficult to see how a tweet that simply reads "French scam artist Michael Francois Bujaldon is using the GDPR to attempt to remove traces of his United States District Court case from the internet. He has already succeeded in compelling PacerMonitor to remove his case. We have 24 hours to respond" (and then links to the PlainSite docket) could possibly violate any Twitter rules, but the company told him he needed to delete the tweet in question:

Once again, we're in a situation where if you hand people tools to delete content they dislike -- whether it's a DMCA takedown process, a GDPR "right to be forgotten" or a private platform's "report abuse" button -- some percentage of people are going to abuse that. And, as we've discussed many times, with the private platform decision making process involving overworked, underpaid workers who have to make determinations on each "report" with about 5 seconds to consider the report, many, many mistakes are going to be made. This is yet another one, and is yet another example of why we should be careful about giving people even more tools for deleting content.

Filed Under: aaron greenspan, content moderation, dockets, erasing history, gdpr, michael francois bujaldon, public information, right to be forgotten, rtbf
Companies: plainsite, twitter

UK High Court Hands Win To Claimant In Right To Be Forgotten Case

from the on-the-other-hand,-claimant-2-[hereinafter-JERKFACE]-gets-nothing dept

The UK High Court has handed down a win (and a loss) in the Right to be Forgotten column. Two plaintiffs seeking delisting of information about their past criminal exploits had their cases considered by the court. Only one of them is walking away with a court order for delisting. The other one will apparently have to live with his past.

The claimant who lost, referred to only as NT1 for legal reasons, was convicted of conspiracy to account falsely in the late 1990s; the claimant who won, known as NT2, was convicted more than 10 years ago of conspiracy to intercept communications. NT1 was jailed for four years, while NT2 was jailed for six months.

Granting an appeal in the case of NT1, the judge added: "It is quite likely that there will be more claims of this kind, and the fact that NT2 has succeeded is likely to reinforce that."

Google disputed both of these claims when they were filed, prompting the legal challenges. While the court admits there's a public interest in both cases, only one of the two claimants apparently deserves to have his history wiped clean. NT2 was more of a model citizen and convicted on lesser charges, so that's where the line is being (vaguely) drawn in enforcing the European Union's Right To Be Forgotten. The summary [PDF] of the decision quickly details the merits of NT2's case.

The crime and punishment information has become out of date, irrelevant and of no sufficient legitimate interest to users of Google Search to justify its continued availability, so that an appropriate delisting order should be made. The conviction was always going to become spent, and it did so in March 2014, though it would have done so in July of that year anyway. NT2 has frankly acknowledged his guilt, and expressed genuine remorse. There is no evidence of any risk of repetition. His current business activities are in a field quite different from that in which he was operating at the time. His past offending is of little if any relevance to anybody’s assessment of his suitability to engage in relevant business activity now, or in the future. There is no real need for anybody to be warned about that activity.

In comparison, NT1 has apparently learned nothing from his brush with the justice system, and headed right back into the professional field where he committed his original crimes.

NT1 did not enjoy any reasonable expectation of privacy in respect of the information at the time of his prosecution, conviction and sentence. My conclusion is that he is not entitled to have it delisted now. It has not been shown to be inaccurate in any material way. It relates to his business life, not his personal life. It is sensitive information, and he has identified some legitimate grounds for delisting it. But he has failed to produce any compelling evidence in support of those grounds. Much of the harm complained of is business-related, and some of it pre-dates the time when he can legitimately complain of Google’s processing of the information. His Article 8 private life rights are now engaged, but do not attract any great weight. The information originally appeared in the context of crime and court reporting in the national media, which was a natural and foreseeable result of the claimant’s own criminal behaviour.

NT1's sentence has also been served, but the court -- while nodding its head toward fresh starts after repaying debts to society -- determines NT1 only paid his debt begrudgingly and benefited from an interim law change that saw him released ahead of schedule.

The information is historic, and the domestic law of rehabilitation is engaged. But that is only so at the margins. The sentence on this claimant was of such a length that at the time he had no reasonable expectation that his conviction would ever be spent. The law has changed, but if the sentence had been any longer, the conviction would still not be spent. It would have been longer but for personal mitigation that has no bearing on culpability. His business career since leaving prison made the information relevant in the past to the assessment of his honesty by members of the public. The information retains sufficient relevance today. He has not accepted his guilt, has misled the public and this Court, and shows no remorse over any of these matters. He remains in business, and the information serves the purpose of minimising the risk that he will continue to mislead, as he has in the past.

It's a bit of an inconsistent decision, but probably about as much as can be expected from a European ruling that says certain people can erase their pasts while others are doomed to repeatedly be disappointed with their vanity search results. At least this ruling shows challenged requests are being examined on a case-by-case basis weighing as much relevant information as possible. This is what Google is attempting to do as well, even though it has less outside info to work with and more than a half-million requests per year to work through. That Google appears to be operating in good faith despite its obvious opposition to the new "right" likely explains the court's refusal to award damages to the prevailing party.

The recently-established right is still problematic and prone to abuse. But this decision shows the courts aren't viewing search engines as towering, villainous money machines hellbent on ruining lives through algorithmic indexing. Instead, this court appears to be willing to engage all sides of the issue when addressing claimants' complaints about troublesome search results.

Filed Under: criminal history, right to be forgotten, rtbf, search results, uk
Companies: google

Top European Court To Consider If EU Countries Can Censor The Global Internet

from the it's-spreading... dept

Last month we wrote about the tragic and hugely problematic ruling in Canada that said a Canadian court could order global censorship of content it deems to be illegal. As lots of people pointed out, that is going to have dangerous consequences for speech around the world. If you accept that Canada can censor the global internet, what's to stop China, Iran or Russia from claiming the same rights?

And now we'll get to find out if the EU similarly believes in the ability of one country to demand global censorship online. In another case that we've been following, French data protection officials had been demanding Google censor content globally, and Google had been refusing. Now, the issue has been sent to the EU Court of Justice, the very same court who created this mess three years ago in saying that Google was subject to "right to be forgotten" claims. Google had reasonably interpreted the law to just apply in the EU (where the jurisdiction existed). But now the same court will decide if EU officials can censor globally.

One hopes that the sheer absurdity of the situation may lead the CJEU to start to recognize just how problematic its ruling was back in 2014, but somehow, that's unlikely. We'll certainly be paying attention to this case...

Filed Under: censorship, cjeu, eu, france, free speech, global censorship, jurisdiction, right to be forgotten, rtbf
Companies: google

Why Wikipedia Is Worried About Global 'Right To Be Forgotten' Delistings

from the book-of-laughter-and-forgetting dept

As Techdirt reported last year, the problematic "right to be forgotten" -- strictly speaking, a right to be delisted from search results -- took a really dangerous turn when the French data protection regulator told Google that its orders to delist results should apply globally, not just in France, a view it confirmed twice. The latest development in this saga is the submission of a petition to the French Supreme Court against the global reach of delisting, made by the Wikimedia Foundation, the organization behind Wikipedia. As its blog post on the move explains:

Although the [French data protection authority] CNIL's case is directed towards Google, the gradual disappearance of Wikimedia pages from Google search results around the world ultimately impacts the public's ability to find the invaluable knowledge contained within the Wikimedia projects. Search engines have played an important role in the quest for knowledge -- roughly half of Wikipedia visits originate from search engines.

The CNIL's most recent order, if upheld, threatens the capacity to write and share important information about history, public figures, and more. It undermines the public's ability to find relevant and neutral information on the internet, and would make it exceedingly difficult for projects like Wikimedia's to provide information that is important for society.

The fact that half of Wikipedia's visits come from online searches emphasizes the point that delisting a page from search results effectively removes it from the Internet. The Wikimedia post goes on to make all the obvious -- and completely valid -- arguments why global delisting is such a bad idea. It also mentions the following:

As part of our efforts to bring more transparency to these requests, when we receive notice that a Wikipedia article was removed from a search engine due to a "right to be forgotten" delisting request, we publish the notice in a public index for the Wikimedia community's reference.

The page not only includes interesting statistics about delisting notices, but also helpfully provides copies of the notices themselves. From these we can see the Wikipedia articles that are no longer listed in search engines, which allows us to guess the names of those who don't want information about them to be readily available, and inevitably encourages us to speculate why that might be.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: censorship, eu, france, right to be forgotten, rtbf
Companies: google, wikimedia