Europe: 1, Google: 0 EU Court Ruling a Victory for Privacy
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."
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.
- Part 1: EU Court Ruling a Victory for Privacy
- Part 2: 'The Fight Won't Be an Easy One'