The European Court of Justice ruled this week that Google must remove certain links in search results if people ask to have them taken down. The case involves the so-called right to be forgotten and a Spanish man upset that searches of his name turned up an old tax problem. We examine how the ruling could affect Internet companies and individuals around the world, and explore the evolving global debate about reputation and free speech on the web.

Guests

  • Emma Llansó Policy Counsel, Center for Democracy and Technology
  • Douwe Korff Professor of International Law, London Metropolitan University

Transcript

  • 13:06:40

    MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, how "Craft Beers," came into their own and now compete with big brand names. But first, in a major decision, the European Court of Justice ruled yesterday that a search engine should allow users the right to have negative information about them, forgotten.

  • 13:07:09

    MR. KOJO NNAMDIIt would mean that, if asked, Google must remove links to pages that might cause embarrassment, even if the information in question was true. And while it's unlikely such a decision could challenge First Amendment rights, here in the U.S., it has highlighted differences between European and American concepts of privacy, freedom of speech and the publics right to know.

  • 13:07:31

    MR. KOJO NNAMDIJoining us, in studio, to discuss this is Emma Llanso, director of the Free Expression Project at the Center for Democracy and Technology. Emma Llanso, thank you, so much, for joining us.

  • 13:07:42

    MS. EMMA LLANSOThanks for having me on the show.

  • 13:07:44

    NNAMDIAnd joining us, by phone, from Greece is Douwe Korff. Professor of International Law at London Metropolitan University. He's a data protection expert and an associate of the Cyber Security Center at the University of Oxford. Douwe Korff, thank you for joining us.

  • 13:08:02

    MR. DOUWE KORFFI'm pleased to be here.

  • 13:08:03

    NNAMDIEmma, I'll start with you. Tell us about this ruling.

  • 13:08:06

    LLANSOSure. So yesterday, the Court of Justice, for the European Union released a decision finding that, an individuals right to privacy trumps the right of internet users to access true public information about that person that’s been posted online.

  • 13:08:25

    NNAMDIDoes it have anything to do with the passage of time, that information refers to?

  • 13:08:32

    LLANSOYes. So the court found that there may be times when information, even that's true, that's a matter of public record, has become irrelevant to associate with a persons name. This is a pretty nebulous standard. It's not clear exactly when information is going to be deemed no longer relevant or excessive to include in a list of links of -- in response to a query for information about a person.

  • 13:09:02

    LLANSOBut the court is -- has announced that people have -- now have the ability to go to search engines and to identify information that, say, posted on a newspaper website or somewhere else as a matter of public record and say, This information shouldn't pertain to me anymore, even though it's true, even though it's a matter of historical fact, don't return this as results when people search my name.

  • 13:09:29

    NNAMDIAnd this pertains to a case about a news article that was written in the late 1990s about some legal trouble an individual had been involved in. He wanted Google to stop posting links to it, when people searched his name. The court did not ask the newspaper not to publish the information anymore or to take it down. It simply asked Google not to link to the site. If you have questions or comments for us, give us a call at 800-433-8850. Do you think you should be able to have embarrassing information about you, online, removed, 800-433-8850? You could send email to kojo@wamu.org.

  • 13:10:04

    NNAMDIDouwe Korff, can we back up for a moment, this right to be forgotten is a concept that may not be familiar to people here. Can you explain what it means?

  • 13:10:14

    KORFFWell, actually, there's one thing that the court did for us, not that this right that's been talk about recently, about the right to be forgotten, already exists in the existing European data protection law. So to that extent, it will be surprising (unintelligible) might be to Americans. I also want to qualify the way the nice lady from CDT said, it sounds very harsh and very restrictive of Freedom of Expression.

  • 13:10:42

    KORFFI think, in practice, this is going to be much less of a limitation. First of all, there is no bar or search engines coming up with old information. All that this says is that ordinary individuals should have a possibility to appeal to a search engine, asking them to remove information. That is no longer relevant, and there is no public interest in that information being made available to the general public. How that's going to work out in public, in practice, is going to be a big area of discussion and practical and legal debate. But there's not as significant intrusion of Freedom of Expression as Americans might, when first reading, think.

  • 13:11:23

    NNAMDIBut, Douwe, you also point out that there are limits to the right to be forgotten and in this decision, the ruling does recognize a different standard in some cases, public figures for example. What are some of the caveats?

  • 13:11:38

    KORFFThe important thing is -- and this ties in with the occasional fear of European Court (word?) if you win the rights of Freedom of Expression. Where it says that, if there was a possible, where are they, a public profiling, is -- also public authority or for some reason or other, goes into the public domain, then that person has less of a right to privacy, full stop. And in particular, a less of a right to have embarrassing or out of date information suppressed.

  • 13:12:05

    KORFFThe importance is going to be on the application of this ruling and practice. But there's one prior thing, which I think is really important because it's going to be -- for me the most important one, the European Court. The Court of Justice in Rustenburg. It is not to be confused with the (word?) Court. However it's now made very clear that sentimental rights, as a (word?) in the child fundamental rights of the European Union are going to be given very strong support by the court in it's (word?) .

  • 13:12:34

    KORFFI did it a few weeks ago and the ruling on the (word?) retention of personal data by communication providers, which ruled was completely unlawful from the very beginning of the after (word?) . That requires us and is now done this again in this context of search engines. This has very light implications for anybody who processes personal data on the internet, including American firms with establishments in Europe.

  • 13:13:02

    NNAMDIEmma Llanso.

  • 13:13:04

    LLANSOI -- well, I have to say that, I think the real danger for free expression does lie in exactly these questions of, How are search engines and other online services going to implement this rule? What the court asks search engines to do in this decision is a number of highly fact specific, very delicate balancing assessments. They have to decide when they get a request from a person. Does this person have a right to ask for this kind of information, to be no longer associated with them. And the court doesn't really give us clear guidance on when a person might have that right. It might depend on national law, it might depend on how long ago the information was posted.

  • 13:13:41

    LLANSOSo that's one question. And then the search engine has to decide, if the person has the right, is this the kind of information they're asking to be taken down. Is this sort of information no longer relevant? Should it be taken out? These are lots of difficult questions for search engines to answer and our real concern is that, rather then engage in this delicate balancing, pitting one users right against -- to privacy against other users right to access information. Search engines will just immediately comply.

  • 13:14:10

    LLANSOWhenever they get a request, they're just going to start taking down links to information rather than either spends the time and resources to try to do this balancing or face getting a court order later, if the individual who makes the request (unintelligible) ...

  • 13:14:23

    NNAMDIThis could effect not just search engines but other online content?

  • 13:14:29

    LLANSOI think it could, yeah. The way the court describes what search engines do, that counts as data processing, under the law, they talk about search engines crawling the web, indexing information, returning lists of results. These are very generic terms, actually. And I think they could move -- include much beyond regular search engines to any kind of service that tries to provide context to information that's available on the web.

  • 13:14:58

    NNAMDIThere's information online that is not searchable online now, how does that work?

  • 13:15:03

    LLANSORight. So if you run a website and don't want it to be indexed by a search engine, you can include robot.text file on your server, so that when a robot comes along to, maybe, index your site, they see this message and see you don't want to be indexed. That's a way or, putting information behind authentication password requirements. There are a number of ways that people who run websites can keep their information out of search results. But when a website, like a newspaper, has decided that they want to post their information publicly to the web, it's no surprise that it ends up in search results.

  • 13:15:43

    NNAMDIEmma Llanso is the Director of the Free Expression Project at the Center for Democracy and Technology. And Douwe Korff is professor of international law at London Metropolitan University. He's a data protection expert and an associate of the Cyber Security Center at the University of Oxford. 800-433-8850 is our number. Do you think that the public and the press have a right to know about negative events in someone's past? Give us a call, 800-433-8850 or send email to kojo@wamu.org. Douwe Korff, you point out that there must be a way to remove outdated information on the internet.

  • 13:16:20

    KORFFWell, I think the important information here is going to be, as my colleague just now from the city, he just said, it very much depends on who decides. And I agree with her that it should not be left up to search engines to delete data at the near request of an individual. They have to make a serious effort to do a serious balancing act. Because they're not going to write any information. I don't share her (word?) that search engines are always automatically going to remove whatever anybody asks at the drop of a hat.

  • 13:16:51

    KORFFMy guess is it might actually be or the other way around. But I think the focus should be not on whether there shouldn't be some balancing between privacy and access to information because I think there should be a balance there somewhere. Although the balance may well be stripped differently in Europe from in the United States. But what the process is going to be and that can not be left to private entities, like Google or Facebook or any other internet giant who to decide what the public gets to see and what it doesn't get to see. The court has not indicated who that is going to be resolved and I think that's where the core of the debate should be in the near future.

  • 13:17:26

    NNAMDIHere is David, on the phone, in Gainesville, Va. David, you're on the air. Go ahead, please.

  • 13:17:32

    DAVIDThanks very much for you -- I just had one comment and one quick question. The comment is regarding, for example, comparison to a resume. When I send out and are applying for a position now, I am very much customized that the position that I'm applying to, if I'm applying to a scientific job, I'm not going to include my customer service and I'm certainly, at no point, going to include any work or any awards I earned in High School at this point in my life, professional certifications, a bachelors degree and so on. So it's very contextual and so that's at what point is the search engine or whoever entity able to make that call? And then also...

  • 13:18:16

    NNAMDIWell, allow me to have one question answered at a time. That is part of the difficulty we're dealing with here, Emma Llanso. What exactly is the timeline, if David does not want to include his High School experience but his boss can go to Google and see an embarrassing photo in his high school yearbook. Should that also be excluded?

  • 13:18:34

    LLANSORight, well, I think one of the questions here is this idea of the context of information. And, of course, when you're creating your own resume that you're going to be sharing with people, you're deciding what information is relevant, what information you want to share with people. When something, like a search engine, is crawling the web and trying to return lists of what is relevant, they're not just relying on your opinion about what's relevant about you, they're trying to assess across the web, across the information that's available publicly, what do other people think is relevant.

  • 13:19:02

    LLANSOSo, I think that we've got to keep clear in our minds, what is the service that a search engine is providing? And it's not just a tool for each individual to try to develop their personal reputation. People should do that and they should include, you know, use websites, their own blogs, their own social media pages to put the information they want about themselves out there, if that's their concern. And have that be -- what shows up further up in the search results then, maybe, other information that is older and less relevant.

  • 13:19:33

    NNAMDIDouwe Korff, the internet does not have boarders. How would this ruling be enforced?

  • 13:19:39

    KORFFWell, this is one of the biggest issues on the internet generally about the question of jurisdiction. And we have (word?) situation where there have been warnings for -- that you cannot have the laws of every country applied simultaneously to everything that happens on the web. You've had cases in which French courts have ordered American companies to refrain from doing some things to the French. Yahoo case, you've had cases in the United States in which you (unintelligible) told people active on the internet to do things according to U.S. law.

  • 13:20:11

    KORFFYou have German rulings, Dutch rulings, French rulings, all applying their own rule and with regard to releasing information. The rules in many countries are extremely different in regard to defamation, with regard to content of court, with regard to pornography, with regard to blasphemy for instance. And the laws are so different that if you have a situation in which every country tries to apply its own law to everything that happens on the internet, you're in chaos.

  • 13:20:42

    KORFFI think this judgment exposes that problem once again. And it is high time that the international community and international lawyers wake up to the need for clearer guidelines on issues of jurisdiction on the internet. That's going to be one of the most difficult issues relating to the internet along with the internet (unintelligible) needs to be addressed.

  • 13:21:02

    NNAMDIEmma, Douwe clearly feels that this should be part of a larger conversation about international privacy standards.

  • 13:21:09

    LLANSOI think he's absolutely right on that. I think it's very important. You know, what we see global online services having to deal with exactly this kind of jurisdiction question, whose law controls. And from a free expression perspective, my real concern is that the emphasis is going to be on whatever the most restrictive rules are.

  • 13:21:31

    LLANSOIf there's not clarity about when a -- an online service is or isn't going to be held liable in a jurisdiction because of how they implement that country's rules for people in other countries, then there's a real risk that the -- to avoid getting pulled into court with -- in the country with the most restrictive rules, the company is just going to apply that standard to everybody.

  • 13:21:57

    NNAMDIAnd her fear obviously, Douwe Korff, is that the most restrictive standards will prevail. And for those of us in news media, we never think that that's a good thing.

  • 13:22:09

    KORFFNo. And I don't think that the American companies are all of a sudden going to apply Iranian blasphemy laws. I think there is a certain amount of common sense. There is going to be something called an issue paper that will be issued by the Council of Europe on the 12th of June and that I prepared for the commission of human rights that addresses a little bit this issue of jurisdiction.

  • 13:22:32

    KORFFMy suggestion is that countries should, in principle, only apply their own rule of trespassing criminal law to people who upload things from their jurisdiction. And they should not (unintelligible) upload things in other jurisdictions. But it's only the beginning of the beginning of a discussion towards the answer. I don't think all internet companies are all of a sudden going to apply the most restrictive (unintelligible). I certainly believe American companies will vigorously fight for first amendment standards according to U.S. law rather then European, or let alone, Eastern European, Middle Eastern (unintelligible) .

  • 13:23:12

    NNAMDIDouwe Korff is a professor of international law at London Metropolitan University. He's a data protection expert and an associate of the Cyber Security Center at the University of Oxford. Emma Llanso is the director of the Free Expression Project at the Center for Democracy and Technology. Thank you both for joining us. We'll be now taking a short break. When we come back, how Craft Beers came into their own and now compete with big brand names. It's Food Wednesday -- make it Beer Wednesday. I'm Kojo Nnamdi.

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