Privacy: 1— Search Engine: nil

Not a day goes by without another data protection ruling from the European Court of Justice.

Well, apart from on Saturdays and Sundays when the ECJ has a lie-in, a leisurely breakfast and then spends the rest of the day mowing the lawn and arguing with the kids.

So, what is it this time?

On Tuesday the European Court of Justice, in a case against Google Spain, decided that there now exists a ‘right to be forgotten’ … within reason.

The judgment states that links to information which is held on an individual should be removed from search engine results under data protection laws in certain circumstances. 

Typically, this would happen where, over the course of time, data on an individual subsequently becomes inadequate; no longer relevant; or excessive in relation to the purposes for which the data was initially processed and in the light of the time that has elapsed.

Of course the relevant data would, in all likelihood, still exist in some lost corner of the web—over which a search engine would have no control—but the link to it would be removed. The lack of a link means that the information becomes invisible for most intents and purposes (although an individual might also want to enforce his or her data protection rights against whoever is holding that data too).

The result?

Individual Privacy, 1; Search Engine, nil: an individual’s right to privacy may be able to trump the economic interests of an impossibly large multinational like Google.  

Indeed, people are already contacting Google with takedown requests according to the BBC . An ex-politician seeking re-election ‘has asked to have links to an article about his behaviour in office removed’ and a doctor has asked that negative patient reviews be removed from search results.

It goes without saying that Google is ‘disappointed’ with all of this (you know that you are in trouble if someone is ‘disappointed’. I always took this, when I was a kid, as parent-speak for ‘absolutely bloody livid’). Google believes the balance that was struck was wrong and that the court went ‘too far’. 

It is clear that this is going to get messy before it is eventually cleared up.

An interesting perspective is from Jef Ausloos at the Interdisciplinary Centre for Law and ICT (ICRI) of the University of Leuven. In a blog post on the day of the judgment, he stated

Even though at first glance it seems to considerably threaten freedom of expression/ information interests, much of the wording seems to be very nuanced and limited in scope when looked at more closely.

What’s more, the recent invalidating of the Data Retention Directive and the on-going battle to design new European data protection laws (in the form of a Data Protection Regulation) means that this is not going to be the last that we hear of this. The EU, when formulating the Data Protection Regulation, was already planning to implement a 'right to be forgotten'.

The tricky problem now for the 28 member states of the EU; the EU itself; and other interested parties (eg almost every government and Internet user on the planet) is how all of these matters will be dealt with in the new Data Protection Regulation. How will the court case be reflected in the new regulation? How many more trees will need to die in vain to produce another draft?

To quote our friends at WIPIT

Well in excess of 3000 amendments have been made to the original text [of the Regulation], the EU presidency has changed 5 times, UK Prime Minister David Cameron and US President Obama took the world’s most famous selfie and there has been the small matter of a mass surveillance scandal.

If there is a swingometer in some fantasy universe somewhere, I suspect that some Peter Snow type character is currently prancing around the ‘privacy’ end of it and waving his arms around excitedly:

Privacy has won this battle but there is still all to play for

That said, just look how determined everybody looks at the ‘search engine’ side of the swingometer. Do you know, I think that they may have it in them to win the war

Or something like that. 

In any event, this is an area where predicting what is going to happen is nigh on impossible. I have often used the analogy of 3D chess in previous blog posts. This time, I am going to go out on a limb and say that this situation is more like 4D chess.

I don’t even know what the extra dimension is yet.

Any thoughts? Do let us know below...

Area of Interest