The Right to be Forgotten – Group 2, Status Report 2

Introduction:

For this part of the project, we concentrated our efforts on researching court rulings, regulations, and incidents related to the Right to be Forgotten (RTBF) across different countries, in order to gain some perspective on how it is implemented at an international level. In this report, we will briefly present our main findings, broken into different geographical regions.

Spain:

Back in 2010, Spanish citizen Mario Costeja González lodged a complaint against a Spanish newspaper, Google Spain and Google Inc. Costeja’s complain was that an auction notice of his repossessed home appeared in Google’s search result, even though the proceedings concerning him had been resolved for years, making that information irrelevant.
The Spanish Data Protection Agency denied the claim against the newspaper but granted the claim against Google. The judgment stated, among others, that individuals can request that search engines disable links to third party pages which come up against searches using their name, if they “appear to be inadequate, irrelevant or no longer relevant or excessive in the light of the time that had elapsed”. This decision essentially confirmed the RTBF, and is credited by experts to be the main case which ignited a lot of debate at a European and International level. [1]

France:

France has played a crucial role in the establishment of the RTBF and is actively trying to enforce it at a local and international level. The most prominent and interesting case, involves France’s Commission Nationale de l’Informatique et des Libertés(CNIL), which fined Google $100,000 for not applying the RTBF on all domains of its search engine, including google.com. Initially Google abided to the RTBF ruling issued in certain european countries and erased all relative results from the respective domains (Google.fr, Google.de), but didn’t remove the results at an international level, stating that it would negatively affect the free flow of information. The CNIL responded to Google’s claim emphasising that the removal only affected the search results and did not actually delete the information from the internet. Google offered the compromise of removing the relative search results for users visiting any Google domain, including Google.com, if requested from a country having issued a RTBF order, but strongly disagreed with the global removal of results even for users outside of France.  The CNIL response to the above changes was that the user’s privacy shouldn’t be bound by geographic origin of the searcher. At the moment Google has requested an appeal. [2][3]

United States of America:

Contrary to Europe, in the USA the right to freedom of speech trumps that of privacy. This was summarized nicely by Jennifer Granick, the director of civil liberties at the Stanford Center for Internet and Society, who said: “Europeans think of the right to privacy as a fundamental human right, in the way that we think of freedom of expression or the right to counsel”.
The approach of the United States is that of protecting sensitive information, such as medical information or educational records, allowing disclosure only under the consent of the individual or as part of a law-enforcement investigation. Interestingly, Granick stated that the Costeja case in Spain, would never have passed in the the USA, based on the First Amendment protecting the freedom of speech, especially since that the information reported was correct.
It is worthwhile to mention a few cases in the USA regarding the RTBF and the following decision. In Texas, an attorney successfully got a court to force Google to remove links on a disciplinary judgement by the local bar association, but eventually Google got a reversal in an appellate court. Another important case was of Nikki Catsouras, who sued the California Highway Patrol for the actions of two employees who leaked photographs, on a variety of grounds, including negligence, infliction of emotional distress and invasion of privacy. [4] The case took more than five years, but eventually the defendants settled for the amount of $2.4 million. Finally, an interesting law passed in 2015 in California, called the “California’s Eraser Button law“ [5] essentially forced sites that are directed to minors to give minors the ability to delete any content they posted. This law, even though a simple concept and rather logical, is plagued with ethical and technical problems as well as multiple loopholes for companies to bypass it.

Japan:

While Japan does not currently have an active law similar to the RTBF, there were two recent court rulings relevant to the subject. In the first case, a man demanded that Google remove reports dating three years ago which detailed his arrest and conviction for breaking child prostitution and pornography laws. The court ruled in favour of the man, saying that, depending on the nature of the crime, individuals should be able to undergo rehabilitation with a clean online sheet after a certain period of time has elapsed. This was also the first time in the country that the European RTBF was cited in court.
In the second case, a court in Tokyo became the first in Japan to issue a temporary injunction ordering Google to delete search results relating to the arrest of a dentist who had been arrested for illegal dental practices.
It should also be noted that Yahoo Japan stated last year that they would remove information from search results that included addresses, phone number, or referred to minor crimes committed in the past, per a user’s request. [6]

Russia:

Russia introduced it’s own RTBF legislation, which was signed on July 14, 2015, and has been in effect since the beginning of 2016. According to the new federal law, upon request, search engines must delete links to information that is false, obsolete, or violates Russian laws.
There are some important details of the law that should be mentioned:
1. Search engines doing work on behalf of the government or local authorities are exempt from this regulation.
2. Information concerning criminal prosecutions cannot be deleted or edited, regardless of whether the person has served their prison term or not.
3. State employees cannot invoke this law to hide information on their personal income or property.
Prior to the introduction of this law, Yandex, Russia’s largest search engine, had made attempts to introduce amendments to the bill, which were unsuccessful. Yandex argued that a search engine cannot take on the role of a regulatory body and act as a court or law enforcement agency. [7]

Argentina:

The most prominent example of the RTBF in Argentina is a case where native singer-songwriter Virginia Da Cunha sued Google and Yahoo for approximately $42,000 claiming damages for material and moral harm, because her name was appearing in search results relating to websites offering sexual content, pornography, escorts, and other activities related to sex trafficking [8]. Da Cunha claimed this was done without her permission, harmed her career, and was against her personal beliefs and professional activities. The case concluded with no material damages on behalf of Google and Yahoo, but both companies were ordered to pay $10,000 for moral damages and remove her photographs from results relating to sex, eroticism and pornography. Regarding the removal of search results, Google responded that it was unable to comply with broad injunctions, whereas Yahoo insisted that the only way to enforce the decision was to block all sites referencing the plaintiff and return instead a page citing the judicial order.  [9]

Conclusion:

Our plan for the remainder of the project, is to focus on various aspects of the issue such as implementation details, discussion of the issue by important individuals, interesting cases of requests being accepted and declined and any other information be believe is noteworthy and helps report the issue in a comprehensive manner.

References:
[1] http://ec.europa.eu/justice/data-protection/files/factsheets/factsheet_data_protection_en.pdf

[2] http://www.wsj.com/articles/france-fines-google-over-right-to-be-forgotten-1458847256

[3] http://www.reuters.com/article/us-google-france-privacy-idUSKCN0WQ1WX

[4] http://www.newyorker.com/magazine/2014/09/29/solace-oblivion

[5] http://www.forbes.com/sites/ericgoldman/2013/09/24/californias-new-online-eraser-law-should-be-erased/#6e7588f0399d

[6] http://www.theguardian.com/technology/2016/mar/01/japan-recognises-right-to-be-forgotten-of-man-convicted-of-child-sex-offences

[7] https://www.rt.com/politics/327681-russia-internet-delete-personal/

[8] http://www.diariojudicial.com/documentos/adjuntos/DJArchadjunto17173.pdf

[9] http://law.emory.edu/eilr/content/volume-27/issue-1/recent-developments/argentinas-right-to-be-forgotten.html

Authors:
Konstantinos Ioannou
Alexandros Sympetheros