I know you have all read the Google Spain judgment and the many illuminating articles, blogs and comments on this web site that followed. Some may well feel they’d like to forget about Google Spain completely.
However, I have recently received my first couple of removal requests for the online law reporting sites that I manage and publish. So I thought it might be useful to show you what happens and also ponder some, perhaps unintended, consequences of the ruling that will affect both publishers like me and the wider audience.
For those who have not seen a right to be forgotten e-mail here’s the first one I received in August this year:
‘Notice of removal from Google Search
Due to a request under data protection law in Europe, we are no longer able to show one or more pages from your site in our search results in response to some search queries for names or other personal identifiers. Only results on European versions of Google are affected. No action is required from you.
These pages have not been blocked entirely from our search results, and will continue to appear for queries other than those specified by individuals in the European data protection law requests we have honored. Unfortunately, due to individual privacy concerns, we are not able to disclose which queries have been affected.
Please note that in many cases, the affected queries do not relate to the name of any person mentioned prominently on the page. For example, in some cases, the name may appear only in a comment section.
The following URLs have been affected by this action: http://www.employmentcasesupdate.co.uk/site.aspx?i=edxxxxxx‘
A month later and I received another removal notice, almost identical but with a new paragraph inserted giving me (a slightly reluctant) ability to request a restoration
‘…..
If you believe Google should be aware of additional information regarding this content that might result in a reversal or other change to this removal action, you can use our form at https://www.google.com/webmasters/tools/eu-privacy-webmaster. Please note that we can’t guarantee responses to submissions to that form.
…….‘
I have responded and filled in the form. Why? Because the publication of judgments of appellate courts in the UK forms part of our common law and as such should be disseminated as widely as possible.
The critical phrase for me is in para 99 of the Google Spain judgment which, after stating that the data subject’s right should override not only the data controller’s economic rights (I agree – that’s fine) ‘but also the interest of the general public in having access to that information upon a search relating to the data subject’s name’. But the final sentence states:
‘However, that would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of its inclusion in the list of results, access to the information in question.‘
A judgment of the EAT searched for by name fits that bill. Legal judgments are apt to become known by a single name: Stevenson for example. In employment law, everyone knows Polkey, Burchell and Meek to name a few. What would happen if Mr Polkey suddenly became fed up with his name being associated with the court’s considerations when reducing an award of compensation for unfair dismissal? As Google Spain says (at [96]) the data subject does not have to show any prejudice has been caused by inclusion in a list of search results so one day he may just wake up irritated by it all (if he is, as I hope, still with us) and send in his request to Google. Given that they have removed two cases from our site for what I can only presume are similar reasons then I cannot see how they could fail to remove queries for his name. So the next time a student, litigant or business types Polkey in Google they are more likely to find a Professor from London than the crucial case they need to read.
The point here is that an unintended consequence of Google Spain is that Google, albeit unwillingly, effectively now have a say in rendering English case law less visible, reversing some of the transparency gains made with the advent of the Internet and the emergence of access to free resources such as BAILII.
Many lawyers, litigants, advisers and students turn to Google as a first point of research in the knowledge that if the answer is on the web and capable of being indexed then there is a good chance they will find it: their index is comprehensive. The ruling in Google Spain means that is no longer the case for the European variants. The results for some search terms, though we do not know which ones, will have been deliberately made less accurate and less useful.
All this may have had some practical benefit by reinforcing protection of the data subject’s rights if it were not for the sizeable loopholes still left for anyone researching a specific individual.
The first and easiest loophole to exploit is simply to use Google.com (though you may need to log out of Google first). Second is to use another search engine such as DuckDuckGo. Both these routes take advantage of the limits to the ECJ’s jurisdiction. The ruling has no effect on search engines without a corporate vehicle or base within the EU so the material, while obscured, is not erased.
I can easily see that a researcher specifically looking for some information on a particular person will get into the habit of switching search engines. I get regular informal requests from parties in cases we have reported asking that we remove their case and they frequently stress the problem is that anyone undertaking a casual search for their name will find the case. In other words they are not so much complaining about the fact of publication of the case but the ease of finding it. However, those determined to find out more about a particular individual, perhaps a potential employer, will use a variety of different tactics, such as temporarily switching their search provider, and will still find the information if it has been published on the web.
Which in a way leads us to the real irony of the ruling and the mechanism set up to deal with its consequences.
If I wanted to find out what a certain Maria Costeja Gonzalez had been up to in the past 20 years, perhaps with a view to setting up in business with him, then I could Google his name. I would quickly find out that there was some issue with his credit history, not because I found an old notice in a local newspaper web site, but because I read the ECJ’s judgment in Google Spain.
Now if Mr Gonzalez felt that this was not what he wanted, he could easily request that Google remove it from their European search results. And judging by the cases on our sites that have already been removed from the Google search results, I can see no reason why the outcome for Mr Gonzalez should be any different: the cases removed from our sites were not old or inaccurate.
So we would be left in the position that a crucial landmark judgment relating to the operation of data protection in the EU, that could be of use to so many people and advisers in the years to come, would have been deliberately made obscure, leaving perhaps the ECJ to make the same request as I have just submitted to restore the result.
And the final irony of all is that we know so much about Mr Gonzalez because he fought for his rights of privacy in the full glare of media coverage. A strange way to be forgotten.
David Chaplin is an SCL member and director of Bath Publishing, online law publishers: www.bathpublishing.com/
