Tag: Google

Google and the ordinary person’s right to be forgotten

Posted on | by Robin Hopkins

The Guardian has reported today on data emerging from Google about how it has implemented the Google Spain ‘right to be forgotten’ principle over the past year or so: see this very interesting article by Julia Powles.

While the data is rough-and-ready, it appears to indicate that the vast majority of RTBF requests actioned by Google have concerned ‘ordinary people’. By that I mean people who are neither famous nor infamous, and who seek not to have high-public-interest stories erased from history, but to have low-public-interest personal information removed from the fingertips of anyone who cares to Google their name. Okay, that explanation here is itself rough-and-ready, but you get the point: most RTBF requests come not from Max Mosley types, but from Mario Costeja González types (he being the man who brought the Google Spain complaint in the first place).

As Julia Powles points out, today’s rough-and-ready is thus far the best we have to go on in terms of understanding how the RTBF is actually working in practice. There is very little transparency on this. Blame for that opaqueness cannot fairly be levelled only at Google and its ilk – though, as the Powles articles argues, they may have a vested interest in maintaining that opaqueness. Opaqueness was inevitable following a judgment like Google Spain, and European regulators have, perhaps forgivably, not yet produced detailed guidance at a European level on how the public can expect such requests to be dealt with. In the UK, the ICO has given guidance (see here) and initiated complaints process (see here).

Today’s data suggests to me that a further reason for this opaqueness is the ‘ordinary person’ factor: the Max Mosleys of the world tend to litigate (and then settle) when they are dissatisfied, but the ordinary person tends not to (Mr González being an exception). We remain largely in the dark about how this web-shaping issue works.

So: the ordinary person is most in need of transparent RTBF rules, but least equipped to fight for them.

How might that be resolved? Options seem to me to include some combination of (a) clear regulatory guidance, tested in the courts, (b) litigation by a Max Mosley-type figure which runs its course, (c) litigation by more Mr González figures (i.e. ordinary individuals), (d) litigation by groups of ordinary people (as in Vidal Hall, for example) – or perhaps (e) litigation by members of the media who object to their stories disappearing from Google searches.

The RTBF is still in its infancy. Google may be its own judge for now, but one imagines not for long.

Robin Hopkins @hopkinsrobin

Googling Orgies – Thrashing out the Liability of Search Engines

Posted on | by Christopher Knight

Back in 2008, the late lamented News of the World published an article under the headline “F1 boss has sick Nazi orgy with 5 hookers”. It had obtained footage of an orgy involving Max Mosley and five ladies of dubious virtue, all of whom were undoubtedly (despite the News of the World having blocked out their faces) not Mrs Mosley. The breach of privacy proceedings before Eady J (Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB)) established that the ‘Nazi’ allegation was unfounded and unfair, that the footage was filmed by a camera secreted in “such clothing as [one of the prostitutes] was wearing” (at [5]), and also the more genteel fact that even S&M ‘prison-themed’ orgies stop for a tea break (at [4]), rather like a pleasant afternoon’s cricket, but with a rather different thwack of willow on leather.

Since that time, Mr Mosley’s desire to protect his privacy and allow the public to forget his penchant for themed tea breaks has led him to bring or fund ever more litigation, whilst simultaneously managing to remind as many people as possible of the original incident. His latest trip to the High Court concerns the inevitable fact of the internet age that the photographs and footage obtained and published by the News of the World remain readily available for those in possession of a keyboard and a strong enough constitution. They may not be on a scale of popularity as last year’s iCloud hacks, but they can be found.

Alighting upon the ruling of the CJEU in Google Spain that a search engine is a data controller for the purposes of the Data Protection Directive (95/46/EC) (on which see the analysis here), Mr Mosley claimed that Google was obliged, under section 10 of the Data Protection Act 1998, to prevent processing of his personal data where he served a notice requesting it to do so, in particular by not blocking access to the images and footage which constitute his personal data. He also alleged misuse of private information. Google denied both claims and sought to strike them out. The misuse of private information claim being (or soon to be) withdrawn, Mitting J declined to strike out the DPA claim: Mosley v Google Inc [2015] EWHC 59 (QB). He has, however, stayed the claim for damages under section 13 pending the Court of Appeal’s decision in Vidal-Hall v Google (on which see the analysis here).

Google ran a cunning defence to what, post-Google Spain, might be said to be a strong claim on the part of a data subject. It relied on Directive 2000/31/EC, the E-Commerce Directive. Article 13 protects internet service providers from liability for the cached storage of information, providing they do not modify the information. Mitting J was content to find that by storing the images as thumbnails, Google was not thereby modifying the information in any relevant sense: at [41]. Article 15 of the E-Commerce Directive also prohibits the imposition of a general obligation on internet service providers to monitor the information they transmit or store.

The problem for Mitting J was how to resolve the interaction between the E-Commerce Directive and the Data Protection Directive; the latter of which gives a data subject rights which apparently extend to cached information held by internet service providers which the former of which apparently absolves them of legal responsibility for. It was pointed out that recital (14) and article 1.5(b) of the E-Commerce Directive appeared to make that instrument subject to the Data Protection Directive. It was also noted that Google’s argument did not sit very comfortably with the judgment (or at least the effect of the judgment) of the CJEU in Google Spain.

Mitting J indicated that there were only two possible answers: either the Data Protection Directive formed a comprehensive code, or the two must be read in harmony and given full effect to: at [45]. His “provisional preference is for the second one”: at [46]. Unfortunately, the judgment does not then go on to consider why that is so, or more importantly, how both Directives can be read in harmony and given full effect to. Of course, on a strike out application provisional views are inevitable, but it leaves rather a lot of legal work for the trial judge, and one might think that it would be difficult to resolve the interaction without a reference to the CJEU. What, for example, is the point of absolving Google of liability for cached information if that does not apply to any personal data claims, which will be a good way of re-framing libel/privacy claims to get around Article 13?

The Court also doubted that Google’s technology really meant that it would have to engage in active monitoring, contrary to Article 15, because they may be able to do so without “disproportionate effort or expense”: at [54]. That too was something for the trial judge to consider.

So, while the judgment of Mitting J is an interesting interlude in the ongoing Mosley litigation saga, the final word certainly awaits a full trial (and/or any appeal by Google), and possibly a reference. All the judgment decides is that Mr Mosley’s claim is not so hopeless it should not go to trial. Headlines reading ‘Google Takes a Beating (with a break for tea)’ would be premature. But the indications given by Mitting J are not favourable to Google, and it may well be that the footage of Mr Mosley will not be long for the internet.

Christopher Knight

Data protection: three developments to watch

Posted on | by Robin Hopkins

Panopticon likes data protection, and it likes to keep its eye on things. Here are three key developments in the evolution of data protection law which, in Panopticon’s eyes, are particularly worth watching.

The right to be forgotten: battle lines drawn

First, the major data protection development of 2014 was the CJEU’s ‘right to be forgotten’ judgment in the Google Spain case. Late last year, we received detailed guidance from the EU’s authoritative Article 29 Working Party on how that judgment should be implemented: see here.

In the view of many commentators, the Google Spain judgment was imbalanced. It gave privacy rights (in their data protection guise) undue dominance over other rights, such as rights to freedom of expression. It was clear, however, that not all requests to be ‘forgotten’ would be complied with (as envisaged by the IC, Chris Graham, in an interview last summer) and that complaints would ensue.

Step up Max Moseley. The BBC reported yesterday that he has commenced High Court litigation against Google. He wants certain infamous photographs from his past to be made entirely unavailable through Google. Google says it will remove specified URLs, but won’t act so as to ensure that those photographs are entirely unobtainable through Google. According to the BBC article, this is principally because Mr Moseley no longer has a reasonable expectation of privacy with respect to those photographs.

The case has the potential to be a very interesting test of the boundaries of privacy rights under the DPA in a post-Google Spain world.

Damages under the DPA

Second, staying with Google, the Court of Appeal will continue its consideration of the appeal in Vidal-Hall and Others v Google Inc [2014] EWHC 13 (QB) in February. The case is about objections against personal data gathered through Apple’s Safari browser. Among the important issues raised by this case is whether, in order to be awarded compensation for a DPA breach, one has to establish financial loss (as has commonly been assumed). If the answer is no, this could potentially lead to a surge in DPA litigation.

The General Data Protection Regulation: where are we?

I did a blog post last January with this title. A year on, the answer still seems to be that we are some way off agreement on what the new data protection law will be.

The latest text of the draft Regulation is available here – with thanks to Chris Pounder at Amberhawk. As Chris notes in this blog post, the remaining disagreements about the final text are legion.

Also, Jan Philipp Albrecht, the vice-chairman of the Parliament’s civil liberties committee, has reportedly suggested that the process of reaching agreement may even drag on into 2016.

Perhaps I will do another blog post in January 2016 asking the same ‘where are we?’ question.

Robin Hopkins @hopkinsrobin

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

Posted on | by Robin Hopkins

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

Some results may have been removed under data protection law in Europe. Learn more.

Posted on | by Robin Hopkins

This is the message that now regularly greets those using Google to search for information on named individuals. It relates, of course, to the CJEU’s troublesome Google Spain judgment of 13 May 2014.

I certainly wish to learn more.

So I take Google up on its educational offer and click through to its FAQ page, where the folks at Google tell me inter alia that “Since this ruling was published on 13 May 2014, we’ve been working around the clock to comply. This is a complicated process because we need to assess each individual request and balance the rights of the individual to control his or her personal data with the public’s right to know and distribute information”.

The same page also leads me to the form on which I can ask Google to remove from its search results certain URLs about me. I need to fill in gaps like this: “This URL is about me because… This page should not be included as a search result because…” 

This is indeed helpful in terms of process, but I want to understand more about the substance of decision-making. How does (and/or should) Google determine whether or not to accede to my request? Perhaps understandably (as Google remarks, this is a complicated business on which the dust is yet to settle), Google doesn’t tell me much about that just yet.

So I look to the obvious source – the CJEU’s judgment itself – for guidance. Here I learn that I can in principle ask that “inadequate, irrelevant or no longer relevant” information about me not be returned through a Google search. I also get some broad – and quite startling – rules of thumb, for example at paragraph 81, which tells me this:

“In the light of the potential seriousness of that interference, it is clear that it cannot be justified by merely the economic interest which the operator of such an engine has in that processing. However, inasmuch as the removal of links from the list of results could, depending on the information at issue, have effects upon the legitimate interest of internet users potentially interested in having access to that information, in situations such as that at issue in the main proceedings a fair balance should be sought in particular between that interest and the data subject’s fundamental rights under Articles 7 and 8 of the Charter. Whilst it is true that the data subject’s rights protected by those articles also override, as a general rule, that interest of internet users, that balance may however depend, in specific cases, on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life.”

So it seems that, in general (and subject to the sensitivity of the information and my prominence in public life), my privacy rights trump Google’s economic rights and other people’s rights to find information about me in this way. So the CJEU has provided some firm steers on points of principle.

But still I wish to learn more about how these principles will play out in practice. Media reports in recent weeks have told us about the volume of ‘right to be forgotten’ requests received by Google.

The picture this week has moved on from volumes to particulars. In the past few days, we have begun to learn how Google’s decisions filter back to journalists responsible for the content on some of the URLs which objectors pasted into the forms they sent to Google. We learn that journalists and media organisations, for example, are now being sent messages like this:

“Notice of removal from Google Search: we regret to inform you that we are no longer able to show the following pages from your website in response to certain searches on European versions of Google.”

Unsurprisingly, some of those journalists find this puzzling and/or objectionable. Concerns have been ventilated in the last day or two, most notably by the BBC’s Robert Peston (who feels that, through teething problems with the new procedures, he has been ‘cast into oblivion’) and The Guardian’s James Ball (who neatly illustrates some of the oddities of the new regime). See also The Washington Post’s roundup of UK media coverage.

That coverage suggests that the Google Spain ruling – which made no overt mention of free expression rights under Article 10 ECHR – has started to bite into the media’s freedom. The Guardian’s Chris Moran, however, has today posted an invaluable piece clarifying some misconceptions about the right to be forgotten. Academic commentators such as Paul Bernal have also offered shrewd insights into the fallout from Google Spain.

So, by following the trail from Google’s pithy new message, I am able to learn a fair amount about the tenor of this post-Google Spain world.

Inevitably, however, given my line of work, I am interested in the harder edges of enforcement and litigation: in particular, if someone objects to the outcome of a ‘please forget me’ request to Google, what exactly can they do about it?

On such questions, it is too early to tell. Google says on its FAQ page that “we look forward to working closely with data protection authorities and others over the coming months as we refine our approach”. For its part, the ICO tells us that it and its EU counterparts are working hard on figuring this out. Its newsletter from today says for example that:

“The ICO and its European counterparts on the Article 29 Working Party are working on guidelines to help data protection authorities respond to complaints about the removal of personal information from search engine results… The recommendations aim to ensure a consistent approach by European data protection authorities in response to complaints when takedown requests are refused by the search engine provider.”

So for the moment, there remain lots of unanswered questions. For example, the tone of the CJEU’s judgment is that DPA rights will generally defeat economic rights and the public’s information rights. But what about a contest between two individuals’ DPA rights?

Suppose, for example, that I am an investigative journalist with substantial reputational and career investment in articles about a particular individual who then persuades Google to ensure that my articles do not surface in EU Google searches for his name? Those articles also contain my name, work and opinions, i.e. they also contain my personal data. In acceding to the ‘please forget me’ request without seeking my input, could Google be said to have processed my personal data unfairly, whittling away my online personal and professional output (at least to the extent that the relevant EU Google searches are curtailed)? Could this be said to cause me damage or distress? If so, can I plausibly issue a notice under s. 10 of the DPA, seek damages under s. 13, or ask the ICO to take enforcement action under s. 40?

The same questions could arise, for example, if my personal backstory is heavily entwined with that of another person who persuades Google to remove from its EU search results articles discussing both of us – that may be beneficial for the requester, but detrimental to me in terms of the adequacy of personal data about me which Google makes available to the interested searcher.

So: some results may have been removed under data protection law in Europe, and I do indeed wish to learn more. But I will have to wait.

Robin Hopkins @hopkinsrobin

Google Spain and the CJEU judgment it would probably like to forget.

Posted on | by Akhlaq Choudhury

In the landmark judgment in Google Spain SL and Google Inc., v Agencia Espanola de Proteccion de Datos, Gonzales (13th May 2014), the CJEU found that Google is a data controller and is engaged in processing personal data within the meaning of Directive 95/46 whenever an internet search about an individual results in the presentation of information about that individual with links to third party websites.  The judgment contains several findings which fundamentally affect the approach to data protection in the context of internet searches, and which may have far-reaching implications for search engine operators as well as other websites which collate and present data about individuals.

The case was brought Mr Costeja Gonzales, who was unhappy that two newspaper reports of a 16-year old repossession order against him for the recovery of social security debts would come up whenever a Google search was performed against his name. He requested both the newspaper and Google Spain or Google Inc. to remove or conceal the link to the reports on the basis that the matter had long since been resolved and was now entirely irrelevant. The Spanish Data Protection Agency rejected his complaint against the newspaper on the basis that publication was legally justified. However, his complaint against Google was upheld. Google took the matter to court, which made a reference to the CJEU.

The first question for the CJEU was whether Google was a data controller for the purposes of Directive 95/46. Going against the opinion of the Advocate General (see earlier post), the Court held that the collation, retrieval, storage, organisation and disclosure of data undertaken by a search engine when a search is performed amounted to “processing” within the meaning of the Directive; and that as Google determined the purpose and means of that processing, it was indeed the controller. This is so regardless of the fact that such data is already published on the internet and is not altered by Google in any way.

 The Court went on to find that the activity of search engines makes it easy for any internet user to obtain a structured overview of the information available about an individual thereby enabling them to establish a detailed profile of that person involving a vast number of aspects of his private life.  This entails a significant interference with rights to privacy and to data protection, which could not be justified by the economic interests of the search engine operator.  In a further remark that will send shockwaves through many commercial operators providing search services, it was said that as a “general rule” the data subject’s rights in this regard will override “not only the economic interest of the operator of the search engine but also the interest of the general public in finding that information upon a search relating to the data subject’s name” (at paras 81 and 97). Exceptions would exist, e.g. for those in public life where the “the interference with…fundamental rights is justified by the preponderant interest of the general public in having…access to the information in question”.

However, the Court did not stop there with a mere declaration about interference. Given the serious nature of the interference with privacy and data protection rights, the Court said that search engines like Google could be required by a data subject to remove links to websites containing information about that person, even without requiring simultaneous deletion from those websites.

Furthermore, the CJEU lent support to the “right to be forgotten” by holding that the operator of a search engine could be required to delete links to websites containing a person’s information. The reports about Mr Costejas Gonzales’s financial difficulties in 1998 were no longer relevant having regard to his right to private life and the time that had elapsed, and he had therefore established the right to require Google to remove links to the relevant reports from the list of search results against his name. In so doing, he did not even have to establish that the publication caused him any particular prejudice.

The decision clearly has huge implications, not just for search engine operators like Google, but also other operators providing web-based personal data search services. Expect further posts in coming days considering some of the issues arising from the judgment.

Akhlaq Choudhury