Google Spain, freedom of expression and security: the Dutch fight back

The Dutch fighting back against the Spanish, battling to cast off the control exerted by Spanish decisions over Dutch ideologies and value judgments. I refer of course to the Eighty Years’ War (1568-1648), which in my view is a sadly neglected topic on Panopticon.

The reference could also be applied, without too much of a stretch, to data protection and privacy rights in 2015.

The relevant Spanish decision in this instance is of course Google Spain, which entrenched what has come to be called the ‘right to be forgotten’. The CJEU’s judgment on the facts of that case saw privacy rights trump most other interests. The judgment has come in for criticism from advocates of free expression.

The fight-back by free expression (and Google) has found the Netherlands to be its most fruitful battleground. In 2014, a convicted criminal’s legal battle to have certain links about his past ‘forgotten’ (in the Google Spain sense) failed.

This week, a similar challenge was also dismissed. This time, a KPMG partner sought the removal of links to stories about him allegedly having to live in a container on his own estate (because a disgruntled builder, unhappy over allegedly unpaid fees, changed the locks on the house!).

In a judgment concerned with preliminary relief, the Court of Amsterdam rejected his application, finding in Google’s favour. There is an excellent summary on the Dutch website Media Report here.

The Court found that the news stories to which the complaint about Google links related remained relevant in light of public debates on this story.

Importantly, the Court said of Google Spain that the right to be forgotten “is not meant to remove articles which may be unpleasant, but not unlawful, from the eyes of the public via the detour of a request for removal to the operator of a search machine.”

The Court gave very substantial weight to the importance of freedom of expression, something which Google Spain’s critics say was seriously underestimated in the latter judgment. If this judgment is anything to go by, there is plenty of scope for lawyers and parties to help Courts properly to balance privacy and free expression.

Privacy rights wrestle not only against freedom of expression, but also against national security and policing concerns.

In The Hague, privacy has recently grabbed the upper hand over security concerns. The District Court of The Hague has this week found that Dutch law on the retention of telecommunications data should be down due to its incompatibility with privacy and data protection rights. This is the latest in a line of cases challenging such data retention laws, the most notable of which was the ECJ’s judgment in Digital Rights Ireland, on which see my post here. For a report on this week’s Dutch judgment, see this article by Maarten van Tartwijk in The Wall Street Journal.

As that article suggests, the case illustrates the ongoing tension between security and privacy. In the UK, security initially held sway as regards the retention of telecoms data: see the DRIP Regulations 2014 (and Panopticon passim). That side of the argument has gathered some momentum of late, in light of (for example) the Paris massacres and revelations about ‘Jihadi John’.

Just this week, however, the adequacy of UK law on security agencies has been called into question: see the Intelligence and Security Committee’s report entitled “Privacy and Security: a modern and transparent legal framework”. There are also ongoing challenges in the Investigatory Powers Tribunal – for example this one concerning Abdul Hakim Belhaj.

So, vital ideological debates continue to rage. Perhaps we really should be writing more about 17th century history on this blog.

Robin Hopkins @hopkinsrobin

In the wake of Google Spain: freedom of expression down (but not out)

The CJEU’s judgment in Google Spain was wrong and has created an awful mess.

That was the near-unanimous verdict of a panel of experts – including 11KBW’s Anya Proops – at a debate hosted by ITN and the Media Society on Monday 14 July and entitled ‘Rewriting History: Is the new era in Data Protection compatible with journalism?’.

The most sanguine participant was the Information Commissioner, Christopher Graham. He cautioned against a ‘Chicken Licken’ (the sky is falling in) alarmism – we should wait and see how the right to be forgotten (RTBF) pans out in practice. He was at pains to reassure the media that its privileged status in data protection law was not in fact under threat: the s. 32 DPA exemption, for example, was here to stay. There remains space, Google Spain notwithstanding, to refuse RTBF inappropriate requests, he suggested – at least as concerns journalism which is in the public interest (a characteristic which is difficult in principle and in practice).

‘I am Chicken Licken!’, was the much less sanguine stance of John Battle, ITN’s Head of Compliance. Google Spain is a serious intrusion into media freedom, he argued. This was echoed by The Telegraph’s Holly Watt, who likened the RTBF regime to book-burning.

Peter Barron, Google’s Director of Communications and Public Affairs for Europe, Africa and the Middle East, argued that in implementing its fledgling RTBF procedure, Google was simply doing as told: it had not welcomed the Google Spain judgment, but that judgment is now the law, and implementing it was costly and burdensome. On the latter point, Chris Graham seemed less than entirely sympathetic, pointing out that Google’s business model is based heavily on processing other people’s personal data.

John Whittingdale MP, Chairman of the Culture, Media & Sport Select Committee, was markedly Eurosceptic in tone. Recent data protection judgments from the CJEU have overturned what we in the UK had understood the law to be – he was referring not only to Google Spain, but also to Digital Rights Ireland (on which see my DRIP post from earlier today). The MOJ or Parliament need to intervene and restore sanity, he argued.

Bringing more legal rigour to bear was Anya Proops, who honed in on the major flaws in the Google Spain judgment. Without there having been any democratic debate (and without jurisprudential analysis), the CJEU has set a general rule whereby privacy trumps freedom of expression. This is hugely problematic in principle. It is also impracticable: the RTBF mechanism doesn’t actually work in practice, for example because it leaves Google.com (as opposed to Google.co.uk or another EU domain) untouched – a point also made by Professor Luciano Floridi, Professor of Philosophy and Ethics of Information at the University of Oxford.

There were some probing questions from the audience too. Mark Stephens, for example, asked Chris Graham how he defined ‘journalism’ (answer: ‘if it walks and quacks like a journalist’…) and how he proposed to fund the extra workload which RTBF complaints would bring for the ICO (answer: perhaps a ‘polluter pays’ approach?).

Joshua Rozenberg asked Peter Barron if there was any reason why people should not switch their default browsers to the RTBF-free Google.com (answer: no) and whether Google would consider giving aggrieved journalists rights of appeal within a Google review mechanism (the Google RTBF mechanism is still developing).

ITN is making the video available on its website this week. Those seeking further detail can also search Twitter for the hashtag #rewritinghistory or see Adam Fellows’ blog post.

The general tenor from the panel was clear: Google Spain has dealt a serious and unjustifiable blow to the freedom of expression.

Lastly, one of my favourite comments came from ITN’s John Battle, referring to the rise of data protection as a serious legal force: ‘if we’d held a data protection debate a year ago, we’d have had one man and his dog turn up. Now it pulls in big crowds’. I do not have a dog, but I have been harping on for some time about data protection’s emergence from the shadows to bang its fist on the tables of governments, security bodies, big internet companies and society at large. It surely will not be long, however, before the right to freedom of expression mounts a legal comeback, in search of a more principled and workable balance between indispensible components of a just society.

Robin Hopkins @hopkinsrobin