November 27, 2021

Google grapples with EU right to be forgotten

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Sue Reisinger, from Corporate Counsel

Google Inc. has its legal hands full overseas these days. Besides its antitrust battle with the European Union, the Internet giant has just received Europe’s first “right to be forgotten” enforcement action for failing to remove search results involving a criminal action against an individual.

The privacy battle joins an ongoing fight between Google and the EU’s antitrust authorities over the company’s dominance in the online search market. That fight began four years ago, but a series of new civil suits accusing Google of abusing the European market have recently been filed, according to a report this week in the New York Times.

The newspaper said a decision on the antitrust charges is expected later this year or early 2016.

Meanwhile the privacy issue just became public on Aug. 20 when the U.K.’s Information Commissioner’s Office posted an enforcement action notice. Details of the action show that Google removed a link in its search results to a website that carried a report about the complainant’s 10-year-old criminal conviction.

Subsequently, a news article was published about Google removing the link, including details about the complainant’s original conviction. Other articles by numerous media organizations followed.

The complainant then asked Google to remove nine links to those articles; and this time Google refused, saying the links were relevant and in the public interest. The links as well as the complainant’s name have been redacted from the notice.

Under EU law, a link must be removed if it is “inaccurate, inadequate, irrelevant, or excessive.” The action said the U.K. government would undertake a “balancing exercise” weighing the individual’s right to privacy against the interest of the general public in having access to that information.

After a complaint was filed with the U.K. office, it ruled that Google should remove the links. Still, the company refused, arguing the link concerned one of its decisions to delist a search result that formed an essential part of a news report relating to “a matter of significant public importance,” the action said.

Deputy Information Commissioner David Smith disagreed.

His list of reasons included:

* The case is not about an individual in public life and the information does not “protect the public from improper or unprofessional conduct.”

* The information involves “sensitive personal data.”

* The data is not current and relates to a conviction almost 10 years ago.

* The case involved a relatively minor offense, and the material has a disproportionate impact on the individual’s privacy.

Smith then issued the notice demanding that Google remove the links within 35 days.

A blog by Robinson + Cole this week said this was the first enforcement action since the European Court of Justice held in May 2014 that an EU citizen has the right to make Internet search engines delete links to personal information, commonly called the “right to be forgotten.”

The company can appeal the U.K. order within 28 days to the next layer of bureaucracy, called the First-tier Tribunal on information rights. Google didn’t immediately respond to a request for comment.

But in July 2014, Google’s chief legal officer David Drummond wrote a blog disagreeing with the EU’s new rule on privacy.

He went on to say that Google would comply with the law based on its own criteria of what is in the public’s best interest, but might decline to remove information about criminal convictions, financial scams, professional malpractice or public conduct of government officials. The company posted a form allowing individuals to request to delete information and explaining its decision-making process.

“But,” Drummond wrote, “these will always be difficult and debatable judgments.” It remains to be seen if Google will appeal this case and let the debate continue.

IMAGE: Credit: boygovideo/

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