cambridge-code.org

Academic commentary: Google Spain

ARTICLES
Date Author, Institution Essence URL
12.05 Lorna Woods, Essex Pre-decision background to the case, the legal issues, and the Advocate-General's opinion (plus links to useful posts by Peter Fleischer (Google) and Richard Falkenrath in 2012). Woods 1
       
13.05 Paul Bernal, East Anglia A guide to what was decided and why, aimed at the intelligent lay-person, for the international audience which may not be aware of the rights-balancing exercise in Europe. Bernal 1
  Lorna Woods, Essex Summary of the ruling, emphasising particularly that it makes non-EU resident data processors and republishers liable under EU law. Woods 2
  Jonathan Zittrain, Harvard Consideration of the implications of the ruling for the complainant, search engines and the public, expressing some skepticism about allowing control of true but regrettable facts in the public domain. Zittrain 1
  Steve Peers, Essex Finds ruling compelling except on balancing interests. Here it goes awry by failing to properly consider the right to carry on a business, freedom of expression, or the journalistic exception. Illuminating case law references and queries throughout. Peers 1
  Jef Ausloos, Leuven The ruling confirms that Google must consider requests, backed by independent review. Concerningly, the ruling privileges personal data interests above those of all other internet users. Notes the governing law is currently being revised. Ausloos
  Orla Lynskey, LSE The court read the Directive more literally and expansively than the AG. Remarks that rights to freedom of expression and information were not explicitly balanced and suggests that take-down could be the new default. Lynskey 1
  Alan McKenna, Kent Short comment predicting prominent debate on administrative burden, potential censorship, and boundary between privacy and access. McKenna
  Daniel Solove, GWU Noting that important privacy considerations support a potential right to be forgotten, queries the practicalities of large scale implementation by intermediaries. There are First Amendment concerns, but US law is also a mess. Solove 1
       
14.05 Steve Peers, Essex Noting the antiquated state of the Data Protection Directive, this is a considered examination of the ruling's potential implications for social networks, Wikipedia, and 'Web 3.0'. Peers 2
  Viktor Mayer-Schönberger, Oxford Downplays the implications of the ruling on the basis that it will still require cumbersome legal procedures to enforce. Argues that forgetting is an important value in a forgiving society. Mayer-Schönberger 1
  Chris Pounder, *Amberhawk Data protection law is purpose driven. Google's purposes are facilitating search/speech, and making money/advertising. This ruling establishes a right to independent review in the former case and creates an interesting argument against the second. Pounder 1
  Paul Bernal, East Anglia A summary of the ruling and a brief analysis of whether the ruling is a 'good' or a 'bad' thing for freedom on the internet. Bernal 2
  Paul Bernal, East Anglia A look at the options for Google and at why this ruling is not likely to be as big a deal as it might be. Considers implications for Google's business model, longer-term reliance on search engines, and the kind of internet we want. Bernal 3
  Michael Falgoust, Universiteit Twente The internet's long memory inspires love and hate, as it both remembers and haunts us with our pasts. The ruling brings forward important questions about identity: the quantified self/a static array of frozen points, or the dynamic event we know as human life? Note this isn't about completely removing information, just results from an index. Falgoust
  Henry Farrell, GWU Ruling determined that Google is subject to EU data protection law. Follows Mayer-Schönberger's suggestion that the implications will be minimal for individuals. Considers political implications. Farrell
  Annemarie Bridy, Idaho Notes the distinction between the facts of this case (a lawyer and his past financial troubles) and classic privacy cases (e.g., private intimate acts), leading to some concern about the integrity of the public record given such an expansive ruling. Bridy
  Eric Posner, Chicago Welcomes the ruling's capacity to vanquish information of little public value but high reputational value. It gives ordinary, non-newsworthy people the valuable illusion of reinvention. Critiques the rigidly ideological US approach to free speech. Posner
  Dan Svantesson, Bond Considers long-term implications for the internet may be severely limiting, with obvious practical difficulties of overdetermination, and trying to rescue information that subsequently becomes relevant (noting that relevance is not static. Svantesson
       
15.05 Andrew Smith, Open University Argues that the ruling is technically and practically unenforceable. It makes content harder to find, but it does not remove it. The internet is an unbounded platform for digital whack-a-mole. Smith
  Jonathan Zittrain, Harvard This is a bad solution to the important problem of permanent online records. Suggests ruling is too broad (because of DPD language), but also too narrow (because of focus on search engines). It inspires Google introspection. Zittrain 2
  Jonathan Zittrain, Harvard Further exploration of the ruling's practical implications. Beyond legal recourse, reflects that the Google landing page on name searches could be improved beyond "ten links from the Google sorting hat". Zittrain 3
  Julia Powles, Cambridge This ruling follows from applying data protection law and attempts to give real recognition to digital rights. The law needs upgrading and is difficult to implement. Proposes a right to reply as part of a manageable solution. Powles 1
  David Erdos, Cambridge Highlights the profound tension between the original vision of the Data Protection Directive and the diametrically opposed expectations of today's internet users and companies. Erdos
       
16.05 Paul Bernal, East Anglia This ruling is not about paedophiles or politicians. It will not really give people an ability to hide their past, nor will it stop people manipulating their reputations. Bernal 4
  Daithí Mac Síthigh, Edinburgh Emphasises that the ruling makes US technology companies accountable as data controllers under EU law. Expresses reservations about appropriateness of giving intermediaries a determinative role. Mac Síthigh
  Rigo Wenning, *W3C The ruling was forced by data protection law and the reference's limitation to Google's republication. The law needs urgent replacement. The technical community should develop solutions and standards adapted to the reality of the decentralised web. Wenning
  Guy Vassall-Adams, *Matrix Chambers The Data Protection Directive is not fit for internet publishing where a wide definition of personal data makes no sense. The striking absence of any balance with right to freedom of expression or information is profoundly erroneous. Vassall-Adams
  Michael Geist, Ottawa Technically search engines may implement privacy removals, but this may lead to a tendency towards removal; it does nothing for underlying content; and there is no balance with freedom of expression and information. Geist
  Paulan Korenhof, Tilburg The decision follows from data protection law and while it might not be ideal to have Google responsible, it is beneficial that information still exists at the source. It is right to have a second chance over time. Technology part of solution. Korenhof
  Hannah Maslen, Oxford Explores conceptual and ethical issues with the qualititative assessment of data irrelevance over time. Maslen
       
17.05 John Naughton, Cambridge This ruling is a check on real power, an engineering challenge, and a recognition of a real problem. We'll have to see how it turns out in practice, and whether it is the thin edge of the censorship wedge. Naughton
  Shane McNamee, Bayreuth Concerned about the breadth of the ruling and the implications of treating Google's algorithms as if it were a publisher. Concerned that it will be impractical and turn search engines from Europe. McNamee
       
19.05 Andres Guadamuz, Sussex Summarises the ruling, indicating the conflict between the potential for abuse and the need to protect legitimate interests. Guadamuz
  Orla Lynskey, LSE (in conversation) Reiterates from earlier post that this will likely affect Google's business model and take-down may become the default. Like Pounder, recognises there may be future arguments against the right to object to marketing. Lynskey 2
  Nevena Ruzic, *Serbian data protection authority (writing personally) Thoroughly contextualises the decision and its implications, including the important point that it was made in the context of a search made on the basis of a person's name. Queries who will have the jurisdiction to decide cases. Ruzic
  Bloomberg BNA Various soundbites from practitioners and academics on the ruling. BNA
  Henry Farrell, GWU and Abraham Newman, Georgetown Places decision in its political context, arguing that "If the ruling is a European overreaction ...it is the child of US overreach". More broadly, asserts that the US has lost moral force as protector of civil liberties on the internet and needs to engage in real dialogue. Farrell & Newman
  Meg Leta Ambrose, Georgetown No one knows what the right to be forgotten means, as evidenced by the diverse positions taken by different countries in submissions on this case. The court's ruling lacks nuance and gives Google Almighty more power than ever. Ambrose
  David Haynes, City University Notes practical issues: data streams cannot be contained and therefore cannot be completely deleted. It also requires selective blocking according to search terms - a bizarre challenge, as is the difficulty of accommodating the variety of searches and tailoring. Finally, it leaves a wide discretion for self-censorship. Haynes
       
20.05 Evgeny Morozov, *Independent Critiques Google's right to know/censorship framing. Google, banks & insurers are all relentlessly data-hungry. Can respond to copyright and should respond to citizens. Right to reply wouldn't always work because imagination worse than reality. Morozov German
  Christopher Kuner, Cambridge and *Wilson Sonsini Goodrich & Rosati The court requires 'fair balancing' with no criteria for doing so. Concerned that the special data protection risks seen to be posed by search engines creates effectively a different regime online and offline. Raises risk of 'EU internet'. Kuner 1
  David Smith, UK data protection authority (writing professionally Welcomes decision. There is a right to contact search engines and subsequently the ICO (emphasising "clear evidence of damage or distress"). Data protection law is relevant (even old law). Need reasonable expectations and principles for operation. Smith
       
21.05 Evgeny Morozov, *Independent Same article as above, in English. Morozov English
  Evan Selinger, Rochester and Woodward Hartzog, Samford The right to be forgotten is a misnomer. It's not about actually forgetting, it's about obscurity. If information is harder to find it is less likely to cause harm. Expectations & policy should be recalibrated to obscurity. This applies equally to other ephemeral media, like Snapchat, which merely controls rather than obliterates information. Selinger and Hartzog
  Julia Powles, Cambridge Collects together various commentaries and attempts to contravert the 'alarmist argument' with the more inspiring idea that outdated law can now be bolstered, a technology-assisted solution should be explored, and that there are important social values of forgiveness and autonomy recognised in the decision. Powles 2
  Walter van Holst, *Vrijschrift The court's decision is, in many ways, a matter of logic. On whether Google was subject to EU data protection law, if it walks and quacks like a duck, it probably is a duck. Making Google the gatekeeper is challenging, but it should develop transparent, accountable, objective and fair procedures. Moots a ECtHR challenge. van Holst
       
22.05 Daniel Solove, GWU The real issue is modulating the accessibility and flow of personal data and relative obscurity, rather than completely forgetting. The circumstances of data collection, reasons for control, and identity and purposes of the data-controller all affect the privacy/free speech implications. Solove 2
  Daniel Lyons, Boston College The ruling harms information flows and artificially inflates retrieval costs without measurably protecting privacy. The Court's standard is astonishingly vague and is not clear to have helped Costeja in any way. It permits "Orwellian airbrushing of history". Lyons
  Joris van Hoboken, NYU (in conversation) Acknowledges Google's derivative responsibility, but disagrees with deleting legal material, finding this a dangerous shortcut. Notes different cultural expectations of free speech. Like Ambrose, thinks this serves more power to Google. Agrees there's a right to be vulnerable, though seems to see that as self-correcting. Hoboken
  Eric Sterner, Missouri State and *George C Marshall Institute The Internet largely destroyed anonymity and the ability to leave the past in the past. This ruling makes search engines into censors and makes them less-and-less useful without achieving practical privacy. There is no erase button in cyberspace routing. It replicates and expands by design. Sterner
  DJH, 'The IT Countrey Justice' The Internet transformed the searchability, accessibility and immediacy of information retrieval and preservation. This wide ranging ruling limits information retrieval, harming historical and social science research and introducing impossible predictions about the future public interest in information (relevance is a dynamic concept) [Long]. DJH
       
23.05 Anyra Proops, *11KBW Considers the decision fundamentally flawed, because search engines are not meaningful data 'controllers' and there was no balance with rights to freedom of expression and information. Suggests a Strasbourg ECtHR challenge is possible. Proops
  *Article 29 Working Party Art 29 Working Party (association of EU data protection authorities) welcome the decision and will discuss the way in which the ruling can be implemented on a case by case basis on 3 - 4 June. WP29
       
26.05 Stephen King, Monash Slightly broader focus. Notes the increasing European trend towards fixing intermediaries rather than users with liability, referencing the Italian competition authority investigations of TripAdvisor, Google Spain, and the Delfi case in the ECtHR. King
       
27.05 Lorena Jaume-Palasi, LMU Munich The ruling restricts publicness, ignoring freedom of expression, information, and press. Was the ECJ ranking fundamental rights or merely preserving its say? Asserts public data expiry-dates analogous to coerced oblivion & incompatible with liberal democracy. Jaume-Palasi
       
29.05 Chris Pounder, *Amberhawk Discredits the sensationalist headlines and statements of Google, UK press, Index on Censorship and others, who have misrepresented the ruling, often for ulterior motives. All the ECJ had done is say it's no longer a one-way street for freedom of expression. Pounder 2
  Menelaos Markakis, Oxford General summary and considers this is a step towards fully- fledged EU Charter jurisprudence. Markakis
       
30.05 Lilian Edwards, Strathclyde Assesses Google's response form as narrower than the full scope of the ruling, and narrower than a full-blown image right. Google will be doing an initial in-house assessment, though the detail is unclear. Google could have, but chose not to, extend ther right to non-EU citizens. Edwards
  Julia Powles, Cambridge (in conversation) Brief comment on Google's 'disappointingly clever' response, which remains black-box and fails to lead with a service available to other intermediaries (i.e. smaller services). Argues the threat of 'repressive government censorship' is a scare tactic. Powles 3
  Martin Husovec, MPI Munich, Visitor CIS Stanford Though the ruling is right to apply the DPD to US companies, it is terrible because it perpetuates privacy as a "super-human right", pace Lehofer. If the notion of data controller expands to search engines, the exceptions should also expand. Suggests a state-administered centralised solution. Husovec
  Viktor Mayer-Schönberger, Oxford (in conversation) V. short counterpoint that the ruling and Google's action will be no more repressive than how Google already edits the web for child abuse, terrorism, copyright, and won't negatively impact the trajectory of the internet. Mayer-Schönberger 2
  Jeff Jarvis, CUNY Journalism Appalled by the ruling, which makes Google more powerful with the unbounded assessment of what is relevant, and makes banned information more visible because the ruling is only implemented in Europe. Considers it a mark of European technophobia and anti-Americanism. Jarvis
       
31.05 Leonhard Dobusch, FU Berlin Ruling is an interesting development for public regulation of private algorithmic regulation. It increases online service costs due to more sophisticated deletion assessment than the mostly automated, privately negotiated copyright takedown. There are concerns about independence of review and re-introduction of regional borders. Dobusch
       
1.06 Christopher Kuner, Cambridge and *Wilson Sonsini Goodrich & Rosati EU data protection rights are not limited to EU citizens/connections, provided data processing is within Art. 4 (recital 2). More restrictive interpretations, such as in Google form or ICO's "damage or distress" are contrary to Art. 16 TFEU & ruling para 96. To stop "right to be forgotten tourism"/EU internet, need new Regulation & territorial limits. Kuner 2
  Frank Pasquale, Maryland (in conversation) Don't assume Google, unregulated, would present a completely accurate version of past. Search results are a messy ground of contestation, with many drivers. Why not have fundamental human values in the mix? 'Right to be forgotten' is misleading: about managing arbitrary/unfair creation of reputations. Discusses regulation options. Pasquale
  Chris Pounder, *Amberhawk If the allegations of a Google rep on searchengineland.com are true, and deletion requests will have a link indicating that removal was requested, that is equivalent to a "proverbial two fingers to Europe's highest Court". Pounder 3
       
2.06 Katerina Hadjimatheou, Warwick The ruling presents a philosophical challenge by shifting balances usually made by democratically-accountable bodies to companies. There are shortcomings in Google's initial, blunt, delete-or-nothing form. Gives examples of situations where removal is desirable, and others where tags with explanatory/clarifying notes would be useful. Hadjimatheou
  Claire Overman, Kaplan An appropriate response to the ruling must be sensitive to the fact that information that is desired to be removed is just the sort of information that is likely to cause a stir. Notes need for reform tailored to the reality of the internet - something uncontemplated by the original Directive. Overman
  Alfonso Valero, Nottingham Emphasises aspects of ruling relating to data processing, data controlling, and jurisdiction (based on Spanish connection, rather than on general applicability of public international law). Considers ECJ exceeded scope of remit in relation to right to be forgotten. Valero 1
  Emma Peters, Alexander von Humboldt Institute for Internet and Society Point by point analysis of ruling and some of the critique. Concludes by noting that individuals will not be put in a position to rewrite history, but there will be exception to the rule-relationship of recollection and oblivion. Peters
       
3.06 Luciano Floridi, Oxford. *Newly named expert consultant to Google The ruling is part of the coming of age of our information society. We must move beyond denial, recognise complexity and nuance, and seek optimal convergence of multiple perspectives. Our decisions in designing the infosphere are of profound consequence and must be addressed accountably, with sensitivity to ethical ends. Floridi
  Raffaele Zallone, Bocconi While landmark, the ruling is neither completely unexpected nor new. It has been some time in the making, and is partly attributable to Google's bullish approach to privacy. Finding that Google is a controller rather than a mirror of data is right legally and logically, and has domestic Italian precedent. US tech companies must adapt. Zallone
       
4.06 Leslie Francis, Utah This ruling is neither about high privacy protectivity or censorship. It is about the indexing practices of search engines. The consequences for original publishers and public figures were not in issue. Francis
       
6.06 Jonathan Goldsmith, *Council of Bars and Law Societies of Europe This ruling raises a global regulatory issue. Regulation of the internet ensures fairness, access to rights, and the rule of law. Until now, the privacy/free speech balance has been determined not by law or courts, but by international commercial might and slipping between jurisdictions. This is a welcome step towards change. Goldsmith
  Alfonso Valero, Nottingham Argues that ECJ acted beyond competence and jurisdiction. It doesn't give any further fortification to repressive governments, which already have censorship capacities. There are unresolved questions about when information becomes irrelevant. Valero 2
       
9.06 Joe McNamee, *EDRi Emphasises that the ruling is about searches conducted in one's own name, critiquing the media coverage (partly fuelled by Google) that suggest otherwise, and emphasising the volume of information silently deleted on IP grounds. J McNamee
9.06 Edward Wasserman, UC Berkeley The selection and prominence of information on our 'digital permanent record' depends on the alchemy of search engines. Queries whether 'forced ignorance'/'deliberate concealment' is the proper response to the spectre of the toxic permanent record, for which we really need a social ethic of forgiveness. Suggests possible right to reply. Wasserman
       
10.06 Michael Griffin, Vanderbilt Concise summary of ruling and some reactions. Griffin
  Abby Whitmarsh, Southampton Suggests ruling may overreach, yet also offers an insufficient solution for revenge porn, because it doesn't remove information at source. Whitmarsh
       
11.06 Sandy Davidson, Missouri Explains the US media law position, which since the high point of the Californian case of Briscoe (1971) has come to privilege the First Amendment, even in the case of true but not newsworthy (i.e. often considerably dated) facts. Invokes the slippery slope of erasure of incidents of individual ugliness. Davidson
       
13.06 Patrick Stokes, Deakin The ruling raises philosophical and moral questions. It must accommodate different interests: situations where information shouldn't have been public, disproven accusations, situations of time served and forgiveness required. The internet compresses time into an 'eternal present', allowing false accusations to live forever. Stokes