Europe: 1, Google: 0 – EU Court Ruling a Victory for Privacy

WHISTLEBLOWING - SURVEILLANCE, 26 May 2014

SPIEGEL – TRANSCEND Media Service

20 May 2014 – A ruling by the European Union’s highest court last week ordering Google to provide people with the right to be forgotten has generated fiercely divergent responses in the US and Europe. Germans are celebrating the decision, which buttresses privacy.

Mario Gianni knows just what it means when Google doesn’t forget. In the past, when he typed the name of the campground he owns, Los Alfaques, into the search engine he was confronted with images of disfigured bodies. Some 36 years ago, a tanker truck exploded at the campground along the Spanish coast, killing 217 people.

“That’s not only bad for business — it’s inhuman,” says Gianni, who himself lost a relative in the tragedy. It has taken him and his family years of painstaking work to reestablish the campground business.

Three years ago, Gianni sued Google’s Spanish subsidiary, demanding that the company at least remove the most horrendous images from its search results. His aim wasn’t to try to erase historical facts from the Internet — he just didn’t want the images to show up as the first thing you got when you typed in the name of the campground. Google refused to even discuss the issue.

A judge at a court in Tarragona rejected Gianni’s case, saying he would have to sue the company in California, where its headquarters are located. “That would have been far too expensive,” the campground owner says. Like so many others before him, he gave up his legal battle against the Internet giant. In the meantime, the shocking images no longer show up in the search results, much to his relief.

Last Tuesday, the legal position changed, and today a person like Gianni has far better chances of prevailing against Google, without even having to take the company to court.

A Victory over Omnipotent Internet Companies

The reason is a ruling by the European Court of Justice, the European Union’s highest court. The court ruled in favor of a Spanish man who had sought the deletion of an auction notice of his repossessed home dating back to 1998 that appeared on the website of a large newspaper. The court ruled that, in normal cases, the right to privacy outweighs the interests of others.

The ruling is being celebrated as a victory in Europe — a victory over the omnipotence of American Internet companies and a victory of the value placed by the people of the Old World against the economization of the private sphere.

German Economics Minister Sigmar Gabriel celebrated the victory in an interview with the Frankfurter Allgemeine Zeitung newspaper, stating, “Europe stands for the opposite of this totalitarian idea of making every detail of human behavior, human emotion and human thought an object of capitalistic commercial exploitation.”

The reason behind such euphoric reactions may be the general impression growing in recent years that people have been handed over to the Internet companies with little or no ability to assert their rights. These companies collect and process data in an unbridled manner and earn billions of dollars in doing so.

No other company has been as successful at it as Google. It took only a handful of years for the California-based search engine to become one of the world’s most powerful companies. The name has since become synonymous with an Internet economy that knows no rules, except those of its own creation.

‘We’re Afraid of Google’

In Germany, 90 percent of all search requests are processed using Google’s sophisticated algorithms. There is no other country in the world where fears of Google are as widespread as they are here.

“We’re afraid of Google,” Mathias Döpfer, the CEO of German media giant Axel Springer recently wrote in a letter published by the Frankfurter Allgemeine Zeitung. “Google knows more about every active digital citizen then George Orwell would have dared to imagine in even his boldest visions.”

Last week, Joe Kaeser, the CEO of German multinational engineering giant Siemens even spoke of a “digital war” in an interview with SPIEGEL. The final victor in this war will be the one who owns the data.

But the European Court of Justice has now ruled that data belongs first and foremost to the individual. Its decision means that, under certain circumstances, users can now demand that Internet companies — including Google and others — delete links to their data. Almost more important is that the justices ruled that Google and other Internet companies must also respect the laws of the countries in which they are operating.

A Deep Digital Divide Beween Europe and the US

But while attitudes over the ruling in Europe may border on the ecstatic, the comments coming out of the United States verge on the hysterical. As evidenced so many times since the birth of the Internet era, the Europeans and the Americans often have polar opposite views of the same sets of facts. Indeed, there’s a deep digital divide between the Old World and the New World when it comes to issues of Internet privacy. The Europeans regard the right to privacy particularly highly, whereas the Americans consider freedom of expression to be paramount. Often enough, it seems these two views are irreconcilable.

Reactions to the ruling in the United States seem close to unanimous. The incomprehension, rejection and anger of the verdict could be felt not only in the Silicon Valley, but also in the media and among politicians and intellectuals. A storm of indignation seemed to be sparked on the editorial pages of newspapers, on Twitter and among television pundits over the decision.

In an editorial, the New York Times warned that the ruling “could undermine press freedoms and free speech.” It added that it could “leave Europeans less informed.” Finally, it argued, “lawmakers should not create a right so powerful that it could limit press freedoms or allow individuals to demand that lawful information in a news archive be hidden.”

Wild Speculation

US commentators gloated that the European love of the right to privacy goes back to antiquated German and French laws permitting honor-based dueling for nobles. Others speculated wildly that the ruling is blatant European revenge for the NSA scandal.

In the US, freedom of expression, anchored in the Bill of Rights, is so highly valued that any suspected restriction is often immediately considered to be a fundamental attack on democracy. Privacy, on the other hand, plays a miniscule role in American legal philosophy. That’s one of the reasons Silicon Valley Internet firms often consider the European fixation on data privacy to be absurd.

Following the European Court of Justice ruling, however, Silicon Valley is going to have to start taking these concerns more seriously. The question is what the ruling will mean in concrete terms — for Google, Facebook and all the other data-mining companies, not to mention their users.

Putting People at an Unfair Disadvantage

In Cologne, Germany, lawyer Christian Solmecke says he has been contacted by a dozen people since the ruling who would like to have entries in Google search results deleted. They include a young man who won a reading competition in a special education class that was covered by a regional newspaper. In fact, he attended a school for students with special needs of all sorts, not just those with disabilities. As sad as it may be, those who google his name today can easily find the old article, which can be a severe disadvantage when he applies for jobs.

Solmecke believes that the ruling will increase the likelihood that Google will be forced to remove links like that from its search results. The justices in Luxembourg also made it clear in their ruling that the young man won’t have to sue the newspaper to have the link removed.

In the past, Google refused to accommodate requests to delete links unless the individual had successfully sued the website in question. But for websites based in the Cayman Islands or Belize — and there are many — there is little legal recourse available. Although the justices argued that what is reported on an individual website does not necessarily violate the right to privacy, the fact that Google makes it possible for millions of users to find the page and to establish a “more or less detailed profile of the data subject” is “liable to affect significantly … the rights to privacy”. In other words, what might be legal on an individual website could actually be deemed entirely illegal as a Google search result.

A Balancing Act

The Luxembourg justices make clear that EU citizens have the right in principle to protect their private data. It doesn’t even have to be very sensitive information, either. Data like a birthdate could fall under the category, as could the naming of an employer, a mention of the purchase of a house, depending on the circumstances. Anyone who produces an issue legitimately worthy of protection can demand that such data be removed from search results. Nevertheless, as Michael Bartsch, an attorney specializing in IT and data protection issues, states, the court has not provided “carte blanche for deletion demands,” but instead seeks a balancing act.

The justices have found that the rights of individuals override the financial interests of the search engine companies and the interest of Internet users potentially interested in having access to that information. The justices call for a fair balance to be found — one that can also depend on the “role played by the data subject in public life.” In those cases, the public’s interest in accessing that information might override privacy concerns, in which case the search results could be retained. The justices did not provide greater details about how that balance can be found in their ruling.

‘The Fight Won’t Be an Easy One’

Last Tuesday, only hours after the ruling was issued, Joachim Dresen, whose name has been changed by the editors, wrote an email to Cologne-based media lawyer Ralf Höcker. In the message, he asked the lawyer if the ruling would help get him out of a difficult situation. Dresden’s problem began two years ago.

At the time, he was a board member at a bank. He lost his post over a multimillion euro loan the bank granted to a company. He soon found a new job with less responsibility, but his contract is about to expire and the executive is looking for a better position. “So far I haven’t even been invited for a single interview,” he says. “All potential employers google applicants first. The first results they get are newspaper articles about the debacle.”

In 2012, he hired Höcker in an attempt to get the newspaper sites to either delete the stories or at least redact them to only provide the first letter of his last name, a common legal and journalistic practice in Germany. His lawyer advised him against it because he didn’t believe he had any prospects for success. But now Höcker wants Google to adhere to the new rules.

“The fight won’t be an easy one,” he says. “Google will try anything in its power to nullify the ruling. If we have to, we’re also ready to go to court.”

Attorney Solmecke says he’s also getting queries from a number of well-known and less well-known business leaders. But most have little reason for hope because in cases in which executives have voluntarily given interviews to the media, the public may have the right to build a more complete picture of that person — unless, of course, it involves details from the person’s private life or information that is years old. But how old does it have to be before it can be deleted? Are two or five years sufficient or must 15 years have transpired in order for a person to be granted the right to be forgotten?

And what about the hypothetical 17-year-old who rails against capitalism in a blog entry and then applies for a job at a bank at the age of 27?

Google: ‘The Balance Struck Was Wrong’

It is open questions like these that are also creating a major headache for executives at Google. Officials at the company’s headquarters in Mountain View say they are still digesting the ruling. But Google CEO Eric Schmidt made no secret of his objections at a shareholders meeting last week. “A simple way of understanding what happened here is that you have a collision between a right to be forgotten and a right to know,” he said. “From Google’s perspective that’s a balance. Google believes, having looked at the decision which is binding, that the balance that was struck was wrong.”

However, there are no legal means available with which Google can challenge the decision. The company is now working under high pressure to develop procedures for dealing with deletion requests. But even that is difficult because Google executives have no way of estimating how great demand for deletions will be — will it be several thousand or millions? The company says it won’t cave in to every request, but it would require enormous personnel and logistical resources to review each individual case.

There aren’t even 10 people working in the legal department at the headquarters of Google’s Germany operations in Hamburg. If hit by a raft of deletion requests, the company would quickly be overwhelmed. And even if Google were to comply with the deletion requests, a number of other questions remain unanswered. Will the company only be required to remove the links from the services of its European subsidiaries or will it also be required to remove the data from the US site? Will Google also mention that entries are missing from the search results?

Public Aid Available in Germany

If the company refuses to remove the links in a search result, the affected persons will have to sue in a court as they have done up until now. In Germany, however, they also have another option. They can turn to a man named Johannes Caspar.

Hamburg’s commissioner for data protection sits in a conference room at his mini agency, which has precisely 14.4 employees. As the regional official for privacy protection, he is responsible for issues pertaining to companies like Google Germany and professional social networking site Xing, which are both headquartered in the city-state.

“The new ruling changes a lot. Google is now has fundamental responsibility for the links,” he says. Caspar pledges that his office will offer “concrete legal assistance” to affected users, but they must first request direct action from Google itself. If the company refuses to remove the link, consumers can then seek the assistance of the data protection authority.

Supervisory authorities and search engine companies will now have to come to an agreement on the criteria for deletions. Otherwise there’s a danger “that people and search engine operators will be treated completely differently depending on the regulatory authority.” Still, Caspar doesn’t believe there will be a large number of conflicts. “Google already showed during the debate over Street View that its people can think very pragmatically,” he says.

For Google, No Choice But To Adapt

But given how doggedly Google has so far fought for every search result, it seems unlikely that it will now set about deleting data left, right and center, as many people expect. Even in instances when it leads to illegal websites. The company has always been more interested in the broader picture than in individual cases — in other words, the principle of online freedom and its own reputation as a neutral service provider which should not be held responsible for third-party content.

Among those who have learned the hard way just how stubborn Google can be are Bettina Wulff and Max Mosley. The former German First Lady sued the company because Google’s auto-complete feature produced results such as “prostitute” and “red light district” when you typed her name into the search engine.

Meanwhile, Max Mosley, the former president of the International Automobile Federation, the governing body of Formula One racing, who was secretly filmed taking part in a private sadomasochistic orgy by a British tabloid, sought to have Google remove the images from its search results. In recent months, courts in Paris and Hamburg ordered the company to use filters to eliminate them. Google appealed.

“It is clear that Google’s standard argument that the company isn’t responsible for the content of its search results has broken down,” Mosley’s lawyer Tanja Irion said in response to the European Court of Justice ruling.

Google will have no choice but to adapt. “Search engine operators will be forced to bear greater social responsibility,” says Alexander Dobrindt, the German minister for transport and digital infrastructure. Like industrial or media groups, Internet providers should be aware of the consequences and the limitations of their activities, he said. “That may be bad news for some Internet companies but the basic principle that the Internet serves the public is actually boosted.”

‘Pressure on Germany to Get Its Act Together’

Admittedly, it would be boosted even further if the EU were to agree on uniform data protection rules. For now, this remains a sticking point, even though the European Parliament voted for the proposed European General Data Protection Regulation in mid-March. This foresees fines of up to 5 percent of annual turnover for companies that breach it. “This means that Google and other companies will no longer be able to ignore laws as easily,” says Jan-Philipp Albrecht, a member of parliament with the Green Party who specializes in data protection.

None other than Germany is one of the main opponents of the regulation in the European Council, the powerful EU body representing the leaders of the member states that has the final say on many decisions. Interior Minister Thomas de Maizière is concerned that it will overturn Germany’s own data protection law. “The ruling increases the pressure on Germany to get its act together,” says Albrecht.

The European Commission and Parliament are keen to protect personal data not only from private companies but also from the state. On this point, Germany argues that its own laws have always been much tougher. “Our efforts to maintain our standards of protection leave us looking like we are blocking the regulation,” says former interior minister Hans-Peter Friedrich.

It remains to be seen if the current government will continue to uphold this position. Both Heiko Maas’ Justice Ministry and the Interior Ministry are mulling the issue. Even though the ministers have promised to cooperate, they are in fact tussling over who has a say in what. Nonetheless, they expect to reach agreement by August.

For now, Google has little to fear from European politicians. It’s the courts it needs to start worrying about.

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Translated from German by Daryl Lindsey and Jane Paulick.

Go to Original – Spiegel.de

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