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Final Report by Advisory Council to Google on “Right to be Forgotten”: Valuable Criteria, Unbalanced & for a Flawed Legal System

avatar  Niko Härting

Last night, on 5 February 2015, Google has published the report of the findings by its Advisory Council on the Right to be Forgotten. The members of the Advisory Council are Luciano Floridi (University of Oxford), Sylvie Kauffman (Le Monde), Lidia Kolucka-Zuk (Trust for Civil Society in Central and Eastern Europe), Frank La Rue (UN), Sabine Leutheusser-Schnarrenberger (former Federal Minister of Justice, Germany), José-Luis Piñar (Universidad CEU), Peggy Valcke (University of Leuven), Jimmy Wales (Founder Wikimedia Foundation). Only  three members of the Advisory Council (Floridi, Valcke, Kauffman) have not added a dissenting opinion to the final report.

List of Criteria for Handling Delisting Requests

The core of the report is a catalogue of criteria that Google is advised to apply when an individual ask for links to be removed (“delisted”) from the search index. These criteria range from the kind of person who asks for delisting (“public figure” or not) to the time elapsed since the event or the publication. The list of criteria is meticulous, and there is not a single criterion in the list that is not convincing.
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No Guidance for a Balance

What is missing, however, is a clear idea how to rank and prioritize those criteria. What should the decision be if the article in dispute focusses on public health issues but contains false information? The Advisory Council regards “public health” as a strong argument against delisting while stating that “false information … weighs strongly in favor of delisting”.

  • Diffusion by National Courts

At the end of the day, striking the balance will be up to the courts of the 28 EU Member States. And the outcomes will vary as the rules on freedom of speech and freedom of information vary.

  • Anglosaxon Approach

Although most of the members of the Advisory Council are from the Continent, there is a clear over-emphasis on criteria in the report that are typically Anglosaxon. A lot of the criteria deal with “public figures”. Even the paragraphs on “time” as a criterion focus mainly on cases of (former) “public figures” in various contexts.

While the Advisory Council has made great efforts on defining rules for “public figures”, the truthfulness (or falseness) of information only ranks as one (briefly mentioned) criterion amongst others. This strikes a German lawyer as very odd because according to German law “falseness” is a killer argument. Once it is established that information is false, it is illegal to spread such information whoever the person is that such information is about and however “public” that person is.

Dissent by Wales:
Law Deeply Flawed When Forcing Commercial Company to Judge on Right of Expression and Privacy

The best part of the report is a short dissenting statement by Wikimedia’s Jimmy Wales:

“This report is a good faith effort under the limiting circumstance of the confused and selfcontradictory European Law to make recommendations to Google on compliance with that law. I am happy that the report explicitly notes ‘the Ruling does not establish a general Right to be Forgotten’.

I completely oppose the legal situation in which a commercial company is forced to become the judge of our most fundamental rights of expression and privacy, without allowing any appropriate procedure for appeal by publishers whose works are being suppressed. The European Parliament needs to immediately amend the law to provide for appropriate judicial oversight, and with strengthened protections for freedom of expression. Until this time, the recommendations to Google contained in this report are deeply flawed due to the law itself being deeply flawed.”
(Report of the Advisory Council to Google on the Right to be Forgotten, page 27)

Indeed: It should not be upto Google and other private companies to decide if information remains accessible. Instead, we need clear rules and procedures to be inserted in the darft regulation presently discussed in Brussels.

 

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Mehr zum Autor: RA Prof. Niko Härting ist namensgebender Partner von HÄRTING Rechtsanwälte, Berlin. Er ist Mitglied der Schriftleitung Computer und Recht (CR) und ständiger Mitarbeiter vom IT-Rechtsberater (ITRB) und vom IP-Rechtsberater (IPRB). Er hat das Standardwerk zum Internetrecht, 5. Aufl. 2014, verfasst und betreut den Webdesign-Vertrag in Redeker (Hrsg.), Handbuch der IT-Verträge (Loseblatt). Zuletzt erschienen: "Datenschutz-Grundverordnung".

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