Google and the right to be forgotten

Following a decision a couple of weeks ago (13 May 2014) of the EU Court of Justice, European citizens have a “right to be forgotten” – which includes, in essence, a right to be removed from Google search results – and required Google (and by implication other search engines) to comply with a ruling that requires it to provide a mechanism for allowing people to be removed from search results.  Since the case was handed down, and Google has been forced to provide an ‘opt out’ mechanism which allows users to be forgotten, it has been overwhelmed with such requests:

“In implementing this decision we will assess each individual request and attempt to balance the privacy rights of the individual with the public’s right to know and distribute information,” (Google’s webform page)

There’s a really good article here explaining the background to the ruling and outlining some of its implications – and this one here explores the ramifications of Google (and companies like Facebook, Twitter and Google owned You Tube) being classified as media companies.

Google said in a statement on 29 May that it would work with data protection authorities and others as it implemented the ruling. It isn’t clear when Google will begin removing links. In the webform Google says it is “working to finalise our implementation of removal requests under European data protection law as soon as possible. In the meantime please fill out the form below and we will notify you when we start processing your request.”  Ironically, requesters must submit electronic copies of identifying documentation – passports, drivers licenses etc and confirm that they are claiming the right to be forgotten under a relevant European law – so for now, there’s no opportunity for Australian’s with outdated photographs that they’d rather not have available via Google Search to require their removal!  Yahoo has said it is “carefully reviewing” how the decision affects its business and users, while Microsoft, which operates the Bing search engine, has declined to comment.

Of course this raises a whole heap of interesting issues – not the least of which is whether Google will be required to readdress the question of copyright infringing material appearing in its searches.  If it can remove information about people who have elected to exercise their right to be forgotten, then surely they can also tweak their algorithm to ensure that searchers are not taken to infringing sites?

“It’s ‘Don’t be Evil’ 101,” says Geoff Taylor, chief executive of the [UK] music industry’s trade body, the BPI. “The principle at stake here is when you know someone is acting illegally, you shouldn’t continue helping them by sending them business.” (Quoted in The Guardian)

There is no general right to privacy under Australian law, instead privacy of personal information is protected under a mix of Commonwealth, State and Territory legislation, the action for breach of confidence and contract law.  The emergence of a tort of invasion of privacy has been accepted in some states, however, it is in my view unlikely that the law as it currently stands would extend so far as to grant Australian citizens a right to be forgotten. Is it time for us to be following Europe’s lead? As the “Internet of Things” becomes a reality, it’s no longer a simple matter to choose to retain privacy in the way it was even 10 years ago – and it’s less clear than ever whether that’s a good or a bad thing.