Holmes Report 21 Jul 2014 // 10:08AM GMT
1) What is the “Right to be Forgotten” ruling?
Back in May 2014, the European Court of Justice (ECJ), the highest court in the European Union, issued a ruling upholding a law which has since been labeled, the “Right to be Forgotten” (RTBF). The RTBF ruling allows EU citizens to request links [search results] that show up in their personal search results to be removed by Google and other applicable search engines.
The broad parameters mentioned in the ruling state that the right to be forgotten law is only valid in cases where the links appear to be “inadequate, irrelevant or no longer relevant, or excessive” to the individual being searched. As the name of the law hints, the moral directive behind it stems from the right to privacy.
According to the European Commission, the ECJ “explicitly clarified that the right to be forgotten is not absolute but will always need to be balanced against other fundamental rights, such as the freedom of expression and of the media. The Commission goes on to say that “A case-by-case assessment is needed” that takes into consideration:
· The type of information in question
· The sensitivity of the information for the individual’s private life
· The interest of the public in having access to the information in question
· The role the person requesting the deletion plays in public life
According to numerous recent news reports, since the landmark ruling was issued some 70,000 requests have been submitted to Google for consideration (at a clip of about 1,000 per day). This deluge has forced the search giant to hire "an army of paralegals" to process the requests. Google has established an Advisory Councilto help determine the best course of action and principles to guide its process of evaluating removal requests.
Most SEO trade publications suggest that the Advisory Council has set up guidelines for the paralegals to manage the large volume of requests. In the event that the request is questionable, there is presumably a chain of command in place to escalate the case to the higher-ups. Should the request be denied by Google, the individual has the right to argue their claim with the local data protection authorities, who have the ability to overrule the search engine’s decision.
The situation is fluid and dynamic and it is likely that as you read this, Google’s implementation of the law may have already changed. Even so, opening the discussion to PR professionals seems like a valuable exercise.
Important note: this removal will only remove the link to the article, however, the article itself will remain on the publication’s website and indeed, on other search engines.
Where did this unprecedented law come from?
Actually, for years the ECJ had been keen to press Google and other search engines to comply with its definition of the right to privacy. This led to an interesting argument regarding whether privacy laws were most effective when applied to publications, search engines or both. In 2010 a Spanish citizen lodged a complaint against a Spanish newspaper with the Spanish Data Protection Agency.
Simultaneously, this Spanish national filed a complaint against Google Spain and Google Inc. The complaint focused on an auction notice of his repossessed home that appeared in Google search results for his name. He argued that the search results infringed on his privacy rights as the matter had been fully resolved many years earlier. Therefore any reference to this event was now “irrelevant.”
The plaintiff requested that Google Spain and Google Inc. be required to remove the links to personal data relating to him so that it no longer appeared in his search results. This precedent-setting case actually answered the question: Does an individual have the right to request that his or her personal data be removed from being accessed easily via a search engine (the right to be forgotten). Answer: According to the EU’s highest court – Yes! This is the law and there is no appeal on the decision.
Depite the fact that many were taken by surprise by the ECJ’s ruling, its origin can be traced to the European Union’s 1995 Data Protection Directive that was established to protect EU citizens’ fundamental rights in the digital age.
2) Are my clients entitled to use the right to be forgotten link removal process?
The ruling only applies to individuals who are citizens of any one of the 28 EU nations. A North American businessman with business in the EU won’t qualify, unless he is also a citizen of an EU country.
Additionally, individuals who are considered by Google to be public figures or celebrities are unlikely to have content removed from search results using this process.
3) Are companies or brands able to take advantage of the RTBF?
No. This law only applies to individuals. There may, however be benefits to a company or brand. For example, if an executive at a company has links to unfavorable press removed using the RTBF, this will likely benefit the company’s reputation as well, though indirectly.
4) Does my client have a legitimate claim to have some of their links [search results] removed?
According to the press release issued by the ECJ, those entitled to apply for link removal must meet the following criteria: “the data [within the content linked to] appear to be inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed.”
A large team of lawyers spent a lot of time and billable hours crafting this legalese, and it therefore deserves some serious unpacking. Firstly, the subjective language in the ruling raises the question, what exactly do “inadequate,” “irrelevant” or “excessive” mean? If you asked several colleagues for their opinion, you might get just as many interpretations.
What’s fascinating about the court’s ruling is that the burden of proof is actually on Google – and not the individual – to prove that the data should not be deleted because it is still needed and therefore, relevant. This also creates a situation in which Google has become the unwilling judge and jury regarding removing links from search results. We have already seen a backlash against the “Do no evil” search engine operator. The easiest way to make this real for PR professionals is to give a couple of examples of cases where Google has complied with, or refused these requests.
Google has complied with removal requests for the following cases:
· A messy divorce that has overtaken someone’s Google results
· A case of misinformation (i.e. the charges were false and the client exonerated) where search results do not fairly present the individual’s vindication.
Google has refused removal requests for the following cases:
· Where someone is guilty of a violent crime that they are trying to cover up
· A politician (public figure) trying to hide a scandal
5) Who decides if the request for link removal is justified?
The courts have asked Google and the other search engines to take a first pass. Should Google reject the removal request, they will provide contact information for the relevant government organization – the petitioner’s local data protection authority – who will decide the case. That local authority will have the authority to overrule Google and demand that the links be removed. In other words, public authorities will be the ultimate arbiters of the application of the Right to be Forgotten.”
6) If my client succeeds in having undesireable links removed from their search results, what happens next?
Google will place a notice at the bottom of the search results page that looks exactly like this:
For now, it seems as though this notice will remain indefinitely. The PR firm needs to make sure that whatever their client wants removed is more damaging than having an everlasting notice on their search results page. The notice could have the unintended consequence of attracting attention from journalists and others who will dig deeper to see exactly what’s missing. Incidentally, over time the actual link might have eventually fallen off the top results pages where few people visit, but the notice may never follow suit.
7) Does this indicate that wherever I see this notice it means that the person I am searching actually had some of their results removed?
Actually, no. For reasons that are unclear, Google has placed this flag on many search result pages for individuals who have not requested link removals. We know this because at least one of our clients who had no knowledge of the link removal process is currently showing a notice of removal. Initially, many assumed this notice would be used just on results pages where links actually had been removed – as Google does for copyright infringement removals. In fact, Google has admitted this notice shows up “in Europe when a user searches for most names, not just pages that have been affected by a removal.”
8) Are there risks associated with utilizing the right to be forgotten ruling?
Yes, there are some potential risks to using RTBF. Some media have speculated that perhaps Google is going beyond the spirit of the law by notifying media that specific links to their stories have been removed. These notifications, which were not a requirement spawned a torrent of highly critical articles that often referenced and linked to the very stories that were removed. The search engine leader has even indicated which specific links have been removed.
James Ball, a journalist with the Guardian, wrote a scathing op-ed about the right to be forgotten process on July 2 wherein he states that “[Google is] informing sites when their content is blocked – perhaps in the hope that they will write about it.” A number of publications have followed suit, reporting on these takedown request notifcations. PR professionals are left to question if requesting link removal is a worthwhile endeavor for their clients.
The notice the publication receives is the following:
No reporter or publisher will be happy to see this notice of removal. It means less traffic to their site’s content, and creates an immediate, gut reaction that the author’s work has been erased, despite that not being the case as the content still exists on the website of the media outlet.
Much to the chagrin of those requesting removals, several reporters have decided to strike back by writing new stories that reference the old removed content and undermining the goal of the takedown request. The removal then becomes the story as we have seen in many cases like this one or this one.
[Important note: The public doesn’t see this link removal notification – only the publication whose specific articles have been affected by RTBF.]
9) Will utilizing the right to be forgotten have an impact on my search results outside of EU countries?
No, it won’t help your client/s on Google.com or other smaller search engines who lack a presence in the EU. This poses a risk. A searcher could see the notice at the bottom of the search results for whomever they’re searching and be curious enough to search the name on Google.com. As most clients care about how they are perceived in the US as well as in Europe, this will only solve part of their problem. It’s therefore important to manage the client’s expectations about this.
In summary, because PR agencies are often viewed as external brand ambassadors and protectors of a client’s reputation on and offline, PR professionals need to be aware of the right to be forgotten’s implications for their clients. Many agencies have already experienced clients complaining to them about a “Google problem.” To address this growing challenge, many large PR firms either have in-house team members tasked with assisting their clients in this arena or work with trusted partners to solve this specific pain point.
Each client who qualifies to use the law should be evaluated on a case-by-case basis before making a recommendation to them. We can expect that over time, reporters will become accustomed to receiving removal notices and will not have the time, even if they do have the inclination to write new stories that express their outrage. Having said that, using the right to be forgotten will make sense for some clients. Only time will tell if the recent and dramatic changes in the EU will spread to other places around the world. Stay tuned…
David A. Goldman is chief strategy officer at Five Blocks