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Academic Commentary: Google Spain - Compiled by Julia Powles and Rebekah Larsen

Have we missed something? Please email Julia (jep50@cam.ac.uk) or Rebekah (ral73@cam.ac.uk).

ARTICLES
Date Author, Institution Essence URL
       
       
12.05.14 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
       
13.05.14 European Court of Justice ECJ Ruling ECJ Ruling
  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
  Jeffrey Rosen, GWU News articles citing Rosen 2012, which notes that the RTBF should be throttled because of a possible and distant threat to free speech. WSJ 1
WSJ 2
National Journal
The Atlantic
  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, KU 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 1
  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 become 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
  Jeffrey Rosen, GWU News articles citing Rosen 2012, making the bald assertion that RTBF is ‘the biggest threat to free speech on the internet in the coming decade’ and should be throttled. Applying RTBF to information posted by a data subject is less controversial than that by a third party, but more precise definition is required. WSJ 1
WSJ 2
National Journal
The Atlantic
  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
  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
  Zeynep Tufekci, UNC On a deliberately speculative excursion from the actual legal case, reflects on applying an analogue of RTBF to population-level violence (e.g., Rwandan genocide or Holocaust) as opposed to the online individual context: strategic forgetting “lies at the heart of every modern nation” in order to maintain unity. Generally, we should question/discuss who is controlling collective memory. Tufekci
       
14.05.14 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
  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, 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 1
  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 1
  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 1
  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
       
15.05.14 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 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 1
       
16.05.14 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 [Dutch] 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
       
17.05.14 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
       
19.05.14 Andres Guadamuz, Sussex Summarises the ruling, indicating the conflict between the potential for abuse and the need to protect legitimate interests. Guadamuz 1
  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 2 & Newman 1
  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 2
       
20.05.14 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]
Morozov [English]
  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
       
  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
       
22.05.14 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
       
23.05.14 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 Notice
       
26.05.14 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
       
27.05.14 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
       
29.05.14 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
       
30.05.14 *Google Google launches online delisting request form in response to the ruling. Google Form
  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 the right to non-EU citizens. L. Edwards 1
  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 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
       
31.05.14 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
       
1.06.14 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 1
  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
       
2.06.14 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
       
3.06.14 European Commission EC Factsheet on the ruling. EC Factsheet
  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
       
4.06.14 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
       
6.06.14 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
       
9.06.14 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
  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
       
10.06.14 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
       
11.06.14 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
       
13.06.14 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
       
16.06.14 Christian Möller, Kiel Overview of ECJ ruling and AG’s opinion, focusing on search engine reactions, responsibilities, and potential next steps. Notes that theoretically Google could take the case to the EC+HR. Suggests ruling could potentially allow censorship of ‘critical reporting’ under the pretext of data protection. Möller
       
18.06.14 Michelle Frasher, Gent and Visitor Illinois Disputes Google’s assertion that the ruling will adversely affect innovation, calling such claims ‘premature’. Instead, the ruling presents a potential opportunity to strengthen client/consumer relations industry-wide. Privacy is a fast-growing area for innovation and market competitiveness, allowing companies to cater to more regulated EU markets and rebuild consumer trust, especially in the Snowden-rocked US. Frasher
       
19.06.14 David Erdos, Cambridge [Video] Overview for the non-specialist of case trajectory and legal arguments. Analyses the potentially troubling ECJ expansion of the Spanish DPA’s arguments re: when search engines become controllers, their subsequent responsibilities, and the ‘absolute’ rights of individuals to request de-indexing. Situates ruling within wider context of EU DP law, identifying conflicts with other fundamental rights, the ‘sensitive data’ point, and enforcement issues. Erdos 2
       
27.06.14 Jon Baines, *Chairman NADPO Refutes former Ontario Privacy Cmr Ann Cavoukian’s characterisation of Google as a library, and the ruling as an ‘Orwellian’ exercise of information manipulation, by emphasising Google is a profit-driven entity, whose indexing is not simple or lacking editorial mechanisms. The metaphor doesn’t carry. Agrees that ECJ should have addressed countervailing rights in the ruling. Baines
       
1.07.14 John Edwards, *New Zealand Privacy Commissioner Ideas behind ECJ ruling have long heritage - US law in 1970s-80s on practical obscurity, NZ tort of privacy in 1986, Australian jurist Hon. Michael Kirby in 1999. Thinking about future NZ policy: primary issue is jurisdiction (where ECJ and Canadian Equustek rulings assist, to some extent). Moots code of practice or parliamentary intervention may be required. Watching Asia-Pacific with interest. J. Edwards 1
       
2.07.14 Paul Bernal, East Anglia Analysis of whether Google are intentionally overreacting to the ruling to try to ‘prove’ that it is a threat to free speech. Bernal 5
       
11.07.14 David Drummond, *Google Op-ed by Google’s chief legal counsel. Cites Art. 19 UDHR and disagrees with ruling’s impact on right to freedom of opinion and expression, likening compliance to uncataloguing books in a public library. Reiterates Google’s intent to comply with the ruling - recognising the validity of some requests - and notes the difficulties Google faces in balancing public vs. private values in fringe cases. Drummond
  Bruce Arnold, University of Canberra [Radio] Gives a brief background on the ruling for a broad audience, and clarifies the kinds of information that can be de-linked. Notes the extraterritorial issues, briefly commenting on US and Australian reactions given the global operations of search engines and potentially incompatible differences in data protection legal regimes. Arnold
  John Edwards, *New Zealand Privacy Commissioner Lessig’s four forces (markets, social norms, laws, architecture) provide a useful frame for dissecting social challenge of ‘machine forgetting’ (better term than RTBF). Currently, market is king because it has clearest goals, but it also offers fastest response to social norms (*if* multinational information aristocracies - which are nothing without hoards of personal data - don’t shape them first). J. Edwards 2
       
13.07.14 Jonathan Zittrain, Harvard Critiques theory-to-practice aspects of transparency and accountability: 1) displaying takedown notices can lead to negative inferences (‘something to hide’) but transparency is important; and 2) search engines with sole takedown responsibility are exercising a state power. Suggestions for improvement: a takedown database and a mechanism for sites to contest takedowns a priori. Zittrain 4
       
18.07.14 David Haynes, UCL Proceeds from the (disputed) assumption that there is “effectively no control over distribution or storage of information...on the internet”, using this to argue that existing remedies for concerns about privacy, inaccurate information, discrimination, etc, online are pragmatically preferable to a right to be forgotten Haynes 1
  Gordon Fletcher, Salford Digital life reverses privacy from an 18th century mindset: then, “public statements were very conscious acts of composition and presentation”; while “to be private now requires conscious acts of removal”. Private data stores should not have unrestrained access to our digital footprints in perpetuity, but there are jurisdictional issues and technical complexities in picking out personal footprints from replicating networks.. Fletcher
       
22.07.14 David S. Levine, Elon Speculates on Facebook posting by Ukrainian separatists claiming responsibility for the downing of Malaysian Airlines Flight 17. The post was quickly deleted but recovered via the Internet Archive. Suggests that a right hypothetically more robust than that endorsed by the ECJ (i.e. to reach to re-indexers and archives, as well as search engines) might functionally ‘destroy’ the Internet archive and become a way to bury evidence. Levine
  Julia Powles, Cambridge and Luciano Floridi, Oxford Summarises ruling, warning that its taxonomy and logic does not fully address the need for solutions to online information sedimentation. Proposes five principles for search engines: 1) build on past experience of DPAs in a transparent fashion; 2) seek interoperable, durable, empowering responses; 3) constrain discretion and arbitrariness; 4) investigate a generally available right to comment; and 5) contrast removal at source v. removal on republication. Powles 3 & Floridi 2
       
23.07.14 Sub-committee of UK House of Lords Critical report by the UK House of Lords sub-committee, finding the ruling problematic and the DP Directive on which it was based ‘out-dated’. Calls for UK government to fight against ‘right to be forgotten’ in new DP Regulation, and to reclassify search engines not as data controllers. UK House of Lords
       
24.07.14 Article 29 Working Party [Closed meeting] The Article 29 Working Party meets with Google, Yahoo and Microsoft in Brussels to gather evidence. WP29 - Search Engine Meeting
       
31.07.14 *Google Publication of Google’s response to Article 29 Working Party’s questions on procedural aspects of implementation. Google WP29 Response
       
07.08.14 Lilian Edwards, Strathclyde Identifies three main misconceptions: 1) the ruling is not universally condemned - there is just steady rhetorical opposition from a media/Google alliance; 2) it does not destroy free speech, but rather gives individuals more control over personal data, measured against the public interest; and 3) many disputed instances of removal result from misunderstanding the difference between delisting based on name searches and complete removal. L. Edwards 2
  Paul Bernal, East Anglia Critique of the name ‘right to be forgotten’ and reference to the idea of a ‘right to delete’ as set out in Bernal’s book ‘Internet Privacy Rights’. Bernal 6
       
08.08.14 Julia Powles, Cambridge Reacts to Jimmy Wales’ particular cultural and commercial perspective on free speech by putting the counter-argument that ‘more speech’ is not always an adequate solution for information that is private and not in the public interest. Memory, truth and history are fundamental to humanity - but it is a dangerous collapse to equate them with the interests of commercial search engines. Powles 4
       
14.08.14 Judge Masing, Freiburg and German Federal Constitutional Court [German] Preliminary legal analysis of the ruling, noting that the principle of a right to be forgotten is convincing. However, the specifics of the ECJ’s decision are ‘counter-productive’ in terms of: 1) properly delineating the role and powers of search engines; and 2) balancing rights such as privacy and freedom of communication. Masing English summary - Ermert
14.08.14 Brendan Van Alsenoy and Marieke Koekkoek, KU Leuven Examination of the territorial issues in implementation (de-link on a global level vs. filter/modify all search results based on EU-originating queries), using public and private international law precedent. Concludes that valid arguments can be made for both regional and international approaches. Van Alsenoy 2 & Koekkoek 1
       
18.08.14 Martine Reicherts, EU Justice Commissioner Political speech arguing that ruling is being used by detractors to undermine current data protection reform via distorted conceptualisations of the RTBF. The ruling, as well as the reform, is about a ‘rebalancing’ of rights, and does not create a ‘super right’. Further, RTBF is not a new concept. It needs to be updated and clarified in the new EU Regulation - the current political focus. Reicherts
       
21.08.14 Eric Goldman, Santa Clara Primer on the ECJ’s conclusions, Google’s reactions (as of August 2014), and the potential international implications (balkanisation of the internet, further regulation, etc), from a distinctly American legal perspective. Includes useful US case law citations. Goldman
       
23.08.14 Dan Svantesson, Bond Worries about the use of a catchy label, ‘RTBF’, for what is really a (selective) ‘duty to be forgetful’. The label deserves critical appraisal, both for its political motivations, and because it guides, or even controls, our response. Svantesson 2
       
24.08.14 Paul Bernal, East Anglia Critique of the idea of the internet as an immutable, permanent archive by comparison to the ever-changing Wikipedia, where items are modified, deleted, and edited over time. Bernal 7
       
09.09.14 *Google Google’s seven-stop Advisory Council Tour commences in Madrid (followed by Rome 10 Sep, Paris 25 Sep, Warsaw 30 Sep, Berlin 4 Oct, London 16 Oct, Brussels 4 Nov). Google Tour
       
10.09.14 Julia Powles, Cambridge Comment on the Google Advisory Council Tour, expressing a desire that the Council could: 1) expose Google’s current processes for dealing with requests in a way that is transparent and productive; and 2) openly discuss the fundamental conflicts between data protection law and conventional internet use, particularly around what exactly data protection protects, as well as the black holes around scope (bloggers, etc) and ‘sensitive data’. Powles 5
       
11.09.14 Félix Tréguer, EHESS [Interview] Notes urgent need to establish a takedown framework, both for search engines and DPAs. In addition to encouraging a trend towards privatised censorship, the ruling highlights another rule-making issue: DPAs are administrative agencies without accountability or democratic legitimacy. Calls for the EU to have its own ‘Marco Civil’ moment. Tréguer
       
13.09.14 Jon Baines, *Chairman NADPO Explores recourse options in the UK, in the event that a data controller were to refuse to delink. At least in the short term, if Google were to refuse to takedown results, it would suffer no trouble or sanction (save for an unlikely enforcement notice under section 42). Remarks that Google has been selling itself as an unwilling censor to an uncritical and sympathetic media. Baines 2
       
16.09.14 Luciano Floridi, Oxford (and member of Google advisory council) Tour diary #1: The RTBF complex, and balance is required, but everyone has a different idea on the appropriate arrangement. Passing thought on whether we have an ‘undo’ culture that doesn’t remember. Floridi 3
  Paul Bernal, East Anglia Examination of the different ways in which Google’s power is the real issue behind the right to be forgotten: their power over what is found on the net, to set the agenda, to lobby governments, and more. Bernal 8
       
18.09.14 European Commission 'Mythbuster' on the ruling. EC Mythbuster
  Article 29 Working Party [Closed meeting] Press release on WP29 plenary, 16-17 Sep, stating that common case-handling criteria, a common record of decisions, and a dashboard will be developed to help DPAs in processing appeals against search engine decisions. WP29 Plenary 27
       
22.09.14 Estrella Gutiérrez David, Universidad Rey Juan Carlos Analysis of the ECJ’s main findings in contrast to the dissenting portions of the AG’s opinion. In this context, compares the paternalistic, individual-focused approach of EU data protection model to the more ‘flexible’ approach adopted by the US that seeks to ‘spur innovation’ and incentivise ‘technologically advanced services’. David
  Jeffrey Toobin, *The New Yorker Thought-piece for a broad (US) audience about the ideas behind a right to be forgotten, contextualising US and EU reactions to the ruling. Centres around the example of an American family resorting to inadequate search engine optimisation services in an attempt to remove pictures of a violent tragedy from the web, with useful expert commentary throughout the narrative. Toobin 1
       
23.09.14 Frank Pasquale, Maryland Identifies that most US commentary on the ruling has been reactionary and negative. But the power of search engines to shape reputations must be recognised, especially in the context of widespread hacking and subsequent publication of illegally intercepted communications. Some US case law might allow for regulation based on ‘purely private matters’, congruent with protections offered to consumers via the Fair Credit Reporting Act. Pasquale 2
  Jef Ausloos, KU Leuven Highlights the need to distinguish and clarify the ‘right to be forgotten’, the ‘right to objection’, and the ‘right to erasure’, given confusion and misuse in current discourse surrounding the ruling vs. DP Directive/Regulation. Notes that the ‘right to be forgotten’ is an umbrella term, a ‘clumsy’ legal translation of a broad policy goal, and is not part of Directive language. ‘Right to objection’ refers to processing activity, and ‘right to erasure’ refers to the data itself. Ausloos 2
  Steve Peers, Essex Considers right to be forgotten under new DP Regulation. Outstanding issues include: 1) freedom of expression and the narrow concept of journalism; 2) accountability and transparency by search engines - should have reporting requirements; and 3) application to Wikipedia and social networks. Peers 3
       
24.09.14 Eduardo Bertoni, NYU Critique of the right to be forgotten, laying out three common problems cropping up in both the EU context and similar proposals in other jurisdictions: 1) private censorship; 2) information asymmetry; and 3) inequality. Suggests viewing the right to be forgotten as a political slogan (as suggested by Fleischer), and implementing a communication structure as opposed to a legal right (Zittrain). Bertoni
       
25.09.14 Reporters without Borders and La Quadrature du Net, *French NGOs Argues that the RTBF represents a conflict between two fundamental rights, and thus must be balanced under the aegis of the courts - neither search engines nor data protection agencies should be implementing regulation at this stage, in the absence of a clear legal framework. Makes recommendations regarding the misapplication of the right to editorial content, the role of search engines in information access, and reconciling opposing rights. Reporters Without Borders
  Tim Wu, Columbia and Jeffrey Toobin, *The New Yorker [Podcast linked to J. Toobin’s New Yorker article (22.9)] Showing sympathy for the ruling, Toobin and Wu agree that, in a clash of rights, the ‘balance of the equities’ favours individual rights; though the jury is still out on the EU implementation. Toobin notes the tempering of his initial appalled reaction after examining the cultural context and case details. Both note that Google is already making search-related editorial judgments with copyright takedowns. Wu & Toobin 2
       
27.09.14 Simon Davies, *Privacy Advocate Sceptic of Google’s advisory roadshow argues that it has exposed Google to scrutiny, not sympathy. Davies
       
29.09.14 Luciano Floridi, Oxford (and member of Google advisory council) Tour diary #2: Notification issue. Publishers would like to be involved in decisions, as early as possible. Notifications to the public are tricky - if published, the individual becomes identifiable; if not published, raises concern about free expression. [Ignores that conflict doesn't occur in all cases. Position is consistent with Google’s.] Floridi 4
       
30.09.14 Panoptykon, *Polish NGO Current debate should be recentered on the interpretation and implementation of the rights to data correction and erasure, and kept separate from discussion of draft GDPR Article 17. Notes other points of clarification (and other legal regimes - e-Commerce and general civil law). Makes several recommendations, e.g., proper notification procedures, relevant jurisprudence, and determining controlling interests. Panoptykon
  Dan Svantesson, Bond [Academic paper: ‘Delineating the Reach of Internet Intermediaries’ Content Blocking – “ccTLD Blocking”, “Strict Geo-location Blocking” or a “Country Lens Approach”?’] Outlines three alternatives to global removal of third party content online: ccTLD blocking; geo-location to IP address; and steering users towards country-specific content relevant to, but not RTBF-specific. Svantesson 4
       
8.10.14 Luciano Floridi, Oxford (and member of Google advisory council) Tour diary #3: Territoriality issue. Argues that power of default to local domain protects adequately, and considers global delisting unfeasible & dangerous. National domain delisting possibly better. Notes that geographic solutions are not suited to ‘logical’, ‘ordered’ space of the net. [Position is consistent with Google’s.] Floridi 5
       
10.10.14 *Google Google’s first release of gross statistics on implementation, showing number of requests and respective URLs, percentage of successful URL takedowns, plus 14 examples of cases. Report updated daily since this date. Google Transparency Report
       
21.10.14 Luciano Floridi, Oxford (and member of Google advisory council) Tour diary #4: Responsibility issue. Interprets ruling as mandating delisting only, not other creative responses that address DP rights. Also considers that publisher should be asked first. [Position is consistent with Google’s, and ignores the fact that this specific argument was rejected by the ECJ, because availability at source is a different thing to accessibility by search engine.] Floridi 6
       
26.10.14 Mark MacCarthy, Andrea Glorioso, John Tran, Gabe Rottman and Meg Ambrose, Georgetown [Panel] Four panelists (three based in US civil society and academia, one EU representative) discuss various points of debate surrounding the ruling: e.g., the ‘right to be forgotten’ as a misnomer, the misplacement of regulatory duties onto a search engine (asserting perhaps unjustified confidence in DPAs), need for balancing of fundamental rights, and potential issues of censorship. Georgetown Debate
       
28.10.14 David Glance, UWA [Radio] Brief overview of ruling re: human rights and EU territoriality of Google’s operations. Focuses on the BBC’s decision to publish list of delinked articles and discusses the wide range of cases where an argument can be made for erasure. Speculates on the possibility of other jurisdictions (the US and Australia) implementing a similar mechanism (highly unlikely). Glance
       
31.10.14 Andres Guadamuz, Sussex Brief notes on Google’s current role - its influence on debate and how the validity of arguments rest on the way in which the ruling is implemented. Highlights that Google is applying the ruling ‘fairly well’ in terms of balancing private and public interest, but questions why ‘inappropriate’ requests for removal remain undisclosed even after being noted by third parties. Guadamuz 2
       
4.11.14 Andrew Hoskins, Glasgow [Video] Examination of the ruling via current Digital Memory Studies approaches - concludes that pushes for a right to erasure are “symptomatic of a loss of control over hyperconnectivity”, and are “nostalgic for a previous era” when collective memory was more controllable - or when the past was at a manageable distance via more malleable memory. Concludes that we need a new adjustable concept of forgetting and remembering. Hoskins
  Peggy Valcke, KU Leuven (and member of Google advisory council) Commenting on advisory council experience: most challenging aspect is sussing out the grey areas, or when public interest overrides private (in immediate terms v. over time, and in the local vs. global context). Also comments on validity of Google’s current role balancing interests, and her opinion on the ruling as a ‘positive’ development if implemented correctly. Valcke
       
7.11.14 Brendan Van Alsenoy and Jef Ausloos, KU Leuven Review of Google advisory council hearings across Europe, concluding that the result of the public discussions was a ‘mixed bag’: some experts focused on criticising the ‘wisdom’ of the court rather than offering constructive guidance on implementation. But the hearings did allow for useful insight into issues such as publisher notification, territorial reach, and the potential need for independent (third party) assessment of fringe cases. Van Alsenoy 3 & Ausloos 3
       
7.11.14 Carly Nyst and Anna Fielder, *Privacy International The era of ‘objective’ search is over - if it ever existed - and society needs to bring greater scrutiny to the view that search engines are neutral gateways rather than profit-driven portals to information. This disconnect is where much of the RTBF controversy lies. Solutions revolve around the timely updating of the new Regulation regarding a right to data erasure and, in the short-term, DPAs issuing clear guidance (‘toolboxes’) for proper delinking and notification. VNyst & Fielder
       
08.11.14 Dieter Gollmann, Technical University of Hamburg [Presentation] Entertaining presentation of issues, and opening up the question - who decides? Gollman
       
11.11.14 Luciano Floridi, Oxford (and member of Google advisory council) Tour diary #5: Recap of issues to address: the Web is flat, timeless; availability and accessibility of info are decoupled; geographic/virtual reach of ruling must be reconciled; RTBF involves a conflict by proxy of privacy v free speech; the map (search engines) now controls the territory (content); role of publishers; how to assess public interest; overbreadth of data ‘processing’; capacity to automate process; desirability of search engines as gatekeepers? Floridi 7
       
13.11.14 Paul Bernal, East Anglia Response to UK culture secretary Sajid Javid’s mischaracterising suggestion that criminals and terrorists are using the right to be forgotten, pointing out the (deliberate) misunderstanding of the ruling and its pernicious possible effect. Bernal 9
       
18.11.14 Paul Bernal, East Anglia Google’s ‘swift and dramatic’ reaction (online form, notifications, and the Advisory council) has obfuscated and undermined the original point of a ‘right to be forgotten’. Contextualises within original proposals on ‘right to be forgotten’ in 2010: individuals were facing difficulties in deleting their social media profiles. Bernal 10
       
19.11.14 Magdalena Jozwiak, VU University Amsterdam Ruling is on a slippery slope, but a two-sided one: censorship lies at one base and erosion of privacy on the other. From a legal perspective, the ‘default balance’ between freedom of expression and other interests is not constant, but depends on context: values, history, culture and norms. Given technological change has distorted this balance in recent years, the ruling is an effort to prevent more dangerous slippage towards erosion of privacy. Jozwiak
  Alessandro Mantelero, Polytechnic University of Turin Ruling is about access to information via search engines. The ECJ pointed the way, but didn’t build the path. Argues that search engines have no professional skills in balancing rights, so the new DP Regulation should exempt search engines and require courts/DPAs to make the decision, after search engines temporarily freeze links Mantelero
       
20.11.14 Franz Werro, Fribourg [Podcast] Persuasive discussion of differences between European and US approaches, from a scholar who has worked in both jurisdictions. Werro
       
22.11.14 Richard Peltz-Steele, Massachusetts Writing for a broad audience, argues that right to be forgotten jives with the American legal system’s ‘libertarian ethos’. Free speech is a right because it is a necessary step towards ‘self-realisation’, or the ability to self-define. Along these lines, the right to be forgotten is a chance for reinvention and re-definition in the context of a ‘static present’ created by algorithm - it creates a necessary legal mechanism for individuals to unlock their digital identities. Peltz-Steele
  Ian McInnes and Martha Garcia-Murillo, Syracuse Proposes an expansion of anti-discrimination laws as opposed to data erasure or delisting, to protect individuals from ongoing harm. Bases this on the common arguments against the RTBF (effects on freedom of speech and the improper burden of enforcement placed on private institutions). Additionally, argues that there is a social movement towards more realistic (read: forgiving) expectations of human behaviour brought about by social media. McInnes & Garcia-Murillo
       
24.11.14 Robin Mansell, LSE General argument that media regulators should now rely on a ‘platformised’ view of the marketplace to create policy more responsive to the changing roles and growing power of intermediaries. Notes that the ruling is an example of a ‘sporadic’ solution that will not build a basis for a more coherent regulatory framework in the future - i.e. one which would allow policymakers to oversee issues of private strategy inconsistent with public interest. Mansell
       
26.11.14 Mark Stephens, *GNI, Joshua Rothman, *New Yorker, Viktor Mayer-Schönberger, Oxford, and Michael Fertik, *Reputation VIP [Podcast] Framed by Virginia Woolf, Mark Stephens expresses concerns against ruling, because people contextualise so it’s unnecessary; a point emphasised by Joshua Rothman, who says that what is unknowable is what makes us human. Viktor MS expresses the counterpoint, which is that digital forgetting is hard, and stops us forgiving; a point emphasised by Michael Fertik. Policy Innovations
26.11.14
publ. 28.11.14
Article 29 Working Party Response of European DPAs to the ruling. Sets out principles on interpretation - a number of which are inconsistent with Google’s existing practice (e.g., requiring enforcement on global .com domains, not just EU domains; guidelines on use of forms; the use of notifications to original publishers as the exception, not the rule), plus a list of 13 common criteria for handling complaints. WP29 Guidelines
       
2.12.14 Dan Svantesson, Bond Warns, somewhat hyperbolically, about the enforcement of national law by global blocking, suggesting that this could lead to the destruction of the internet as we know it. Svantesson 3
       
3.12.14 Jef Ausloos and Brendan Van Alsenoy, KU Leuven Summary of the main points of the WP29’s guidelines for delisting requests, released in late November. Notes in general and in detail, looking at each of the 13 guidelines, that the crux of the release is the need to balance the privacy rights of the individual vs. the public’s right to information. Ausloos 4 & Van Alsenoy 4
       
5.12.14 US News Debate Club (next entries) Leader for ‘Debate club’ feature in widely distributed American publication, US News. From six contributors, for and against the RTBF, Marc Rotenberg’s argument in the affirmative (Yes - the right to privacy is global) won the poll. US News Debate Club
  Marc Rotenberg, *Electronic Privacy Information Cente [For RTBF] Argues that right to privacy is global and should be enforced on global domains vs. easily-circumvented national domains. Notes (despite initial claims to the contrary) that implementation of the ruling is possible, and there is precedent for removing copyright and financial information. Makes the distinction between content and link removal, given public confusion. Rotenberg 1
  John Simpson, *Consumer Watchdog [For RTBF] Ruling “restores a balance” between the public’s right to know and privacy via an obscurity mechanism. This balance, previously maintained by the fallibility of human memory and the effort involved in information gathering, has been disallowed by Google and its algorithms. Cites a recent poll showing majority of Americans support some form of the right - protection is deserved. Simpson
  Jonathan Zittrain, Harvard [Similar to previous Zittrain contributions] Notes ruling’s weaknesses re implementation: 1) no appeal or re-evaluation mechanism once a delisting request is granted; 2) pointed lack of transparency (or means of analysis) in takedown process; and 3) risk of ‘breaching the editorial barrier’ by search engines being asked to tweak search results. Suggests search engines and academia collaborate to scope full impact of these aspects of implementation. Zittrain 5
  Dawinder Sidhu, New Mexico [Against RTBF] Argues that there is a formidable tension between the ECJ ruling and free speech protections of US constitutional law, meaning that individual privacy rights will never be as expansively articulated in the US. Also argues that alternative measures (adjusted publisher norms, changing of individuals’ online behaviour) would be preferable to a right to be forgotten. Sidhu
  Claude Barfield, *American Enterprise Institute [Against RTBF] Claims ruling is “misbegotten” cyberprotectionism by a “technologically clueless” EU court, contrary to the interests of US government and companies. Proposes that US administrators should signal a change in its trade priorities if the policy behind the ruling is not reversed. Barfield
  Jules Polonetsky and Christopher Wolf, *Future of Privacy Forum [Against RTBF] Argues that RTBF could never be implemented in the US, given First Amendment free speech protections. Notes US approach is to allow ‘counterspeech’, rather than removing objectionable speech. Asserts that extending ruling to global domains would amount to overreaching censorship. Polonetsky & Wolf
       
10.12.14 Stacie Walsh, LSE Argues that WP29 guidelines ignore ‘rights’ of third parties (media, bloggers, govts). Queries why WP29 did not address harm of republishing notifications, rather than prohibiting routine notice to original publishers [focusing on small no. of cases concerning news articles]. Guidelines do not consider how public interest in information may change over time. Concerned about free speech implications. [Article omits clarifying that delisting is for name searches only.] Walsh
       
19.12.14 Sylvie Kauffmann, *Le Monde (and member of Google advisory council) Opinion piece by a member of the Advisory Council contextualising the ruling and aftermath in the furor over NSA surveillance. Google has borne the brunt of the backlash not just in data protection reform, but also regulatory antitrust and tax measures. The right to be forgotten is just one symptom of a greater philosophical, historical, and jurisprudential trans-Atlantic rift that will only become harder for Google and other multinationals to cross. Kauffman
       
x.12.14 Charles Glasser, *Independent, former Bloomberg media counsel (2001-13) Considering application of RTBF to media/news organisations, notes that WP29 guidelines apparently (and surprisingly) exclude internal search engines on news sites. Though consistent with court’s concern with broad accessibility and potential for profiling via Google, this distinction is weak as a matter of DP law. Media would be well advised to consider further the scope of journalism defence and archival rights. Also considers defences for US publishers. Glasser
       
2.01.15 Marc Rotenberg, *Electronic Privacy Information Center, Stewart Baker, *Steptoe and Johnson, Mark Scott, NY Times [Radio] With a strong US focus and perspective, three discussants address the rhetoric of censorship surrounding the case, the existence of a conflict with free speech rights in the US, current recourse in the US for issues in the realm of the RTBF, and analogues to the RTBF in US law. Rotenberg 2, Baker, Scott
       
5.01.15 Ignacio Cofone, Erasmus University Rotterdam [Case note, Chicago-Kent JCIL] Notes ruling was based on a broad reading of Directive right to data erasure and right to object, not RTBF strictly so-called, nor what it might mean in the proposed new DP Regulation. Cofone
       
6.01.15 Alessandro Mantelero, Polytechnic University of Turin Because of concern about Google not being an appropriate judge & jury of RTBF (unlike news entities, search engines do not have editorial skills and experience), argues that new DP Reg should include a mechanism for data subjects to make requests to DPAs, with a temporary 20-30 day delisting initiated at the time of request [seems to hold dangerous potential for gaming by public figures, etc, unless there are some conditions on application]. Mantelero 2
       
22.01.15 Marc Rotenberg, *Electronic Privacy Information Center There has been a lot of confusion in the US about the ruling. Google’s position of limiting application to the EU makes no sense: removing credit card nos or bank account records used to be done for all domains. While decisions on individual requests are difficult, the ruling ultimately defended press freedom because the original material was not delisted - just the search result. Rotenberg 3
  Jef Ausloos, KU Leuven Welcomes new DP Regulation discussion of a ‘right to erasure’ instead of emotive language of RTBF. Conflict between privacy and freedom of expression is immensely inflated (to the great benefit of the big data industry). Erasure is, at core, about empowering citizens with regard to murky data harvesting and exploitation. Google’s Transparency report shows most successful delinkings are from social media and profiling sites, not news sites. Ausloos 5
       
06.01.15 Alessandro Mantelero, Polytechnic University of Turin Argues that the private nature of search engines is not the issue when it comes to these entities applying a balancing test to takedown requests; contrasts to media companies applying similar tests to defamation claims. Proposes that future EU regulation contain a direct-to-DPA framework for complaints, but contain a temporary delinking imposition on data controllers until legal action is commenced. Mantelero 2
       
07.01.15 Bob Seeman, *RIWI Corporation, and Neil Seeman, Massey College and *RIWI Instead of delisting, argues for contextualisation, or right-to-reply style responses, for allegedly objectionable information. This recognises the inevitable evolution of privacy - the future of the ‘intelligent web’ allows flaws to be accepted. Seeman
       
19.01.15 Brendan Van Alsenoy and Marieke Koekkoek, KU Leuven [Academic paper: ‘The Extra-Territorial Reach of the EU's ‘Right to Be Forgotten’] Using the normative framework of public international law, examines territorial scope of delisting. ‘Effectiveness’, while important, cannot be the sole criterion, given its inherent subjectivity. Advances arguments based on territory as the key PIL basis for determining jurisdiction. Offers four interest-balancing factors for assessing, case-by-case, whether to delist globally/locally. Van Alsenoy 5 and Koekkoek 2
       
30.01.15 Abraham Newman, Georgetown Ruling is a calibrated response to stickiness of digital footprints. Though RTBF implementation is cumbersome, Google does not appear to be struggling with insurmountable technical or financial burden, and there is clearly high consumer demand. Compares EU vs US, noting the EU’s distributed regulatory approach, where consumers assist in holding companies to account. Interesting observations on politico-legal options re transnational data flows. Newman 2
  Lee Bygrave, Oslo Summarises ruling and major lines of debate. Notes ECJ’s silence on wider implications, e.g., regarding suppression of different information in different regions, and how to most efficiently and properly deindex. Notes ruling should not come as a surprise to those following developing European jurisprudence re data protection rights and proportionality. Bygrave
  Herke Kranenborg, KU Leuven [Case note, EDPL] Full consideration of decision and debate. Contextualises court’s findings against prior case law, paying particular attention to policy-driven AG opinion. Identifies main distinctions in new DP Regulation (i.e. jurisdiction won’t be based on establishment/equipment, but on offering goods/services; obligation to inform third party processors, etc). Kranenborg
       
04.02.15 Ellen Goodman, Rutgers On ‘territoriality’, supports Google’s approach, of delisting on local domains, as a ‘good enough’ approach to practical obscurity. The risk feared otherwise is that illiberal regimes [currently domestically focused] will export their strategies to the global net. Goodman 1
       
06.02.15 *Google Publication of Google advisory council final report on the right to be forgotten (renamed, in the report, echoing DPAs, as ‘right to be delisted’). Google Council report
  Luciano Floridi, Oxford (and member of Google advisory council) On ‘territoriality’, prefers national (i.e. national default, such as google.fr, .de, .es) delisting, because global delisting involves external application of EU law [does not separate different types of cases], plus in theory illiberal regimes could offer alternative and more complete search engines [of course: they too would be subject to DP law]. Supports notifying publishers, without explicating safeguards. Hopes digital society norms will evolve to become more forgiving. Floridi 9
  Heather Roff, Visitor Denver Noting Costeja and Shefet cases, accepts and follows Floridi's defence of restricted EU enforcement, recognising that this is clearly not sufficient given the transnational and global reach of the internet. RTBF is therefore an unenforceable right in Kantian terms, unless we create a digital Leviathan [which some might argue Google already is]. Roff
       
10.02.15 David Rodin, Oxford Opinion that there is no right to be forgotten, raising some of the strawman arguments dismissed in the Google advisory council report and by many of the commentators above and below. Rodin
       
11.02.15 Julia Powles, Cambridge Distinguishes speech from data protection - adjectives from nouns - and, in turn, the differential significance of truth, intent and context. Sometimes rights may conflict, but that does not make them incompatible. Powles 6
       
16.02.15 Eerke Boiten, Kent Google has stirred controversy with generic search removal notices, publishers, and failing to correct misinterpreted scope - causing “nice ‘censorship’ storm”. Advisory council renamed rtbf “right to delist”, but was unnecessarily removed from Google’s practices, plus invented “bizarre new freedom” to use different national versions of Google search, and novel categories of data protection in public interest. Google’s profit-motive was ignored - at our peril. Boiten
       
18.02.15 Julia Powles, Cambridge and Enrique Chaparro, *Fundación Vía Libre Guardian feature drilling down into why the RTBF matters against the privatised algorithms that augment the perpetual present of digital ‘public’ space. Addresses false dichotomies of debate; how Google has been omnipresent in managing the response; what regulators and publishers should be doing; and why the battle to retain and resist control of personal data is of great significance in an ecosystem increasingly defined by surveillance. Powles 7 & Chaparro
       
20.02.15 Irina Raicu, Santa Clara Discursive spinoff from RTBF (how can we stop perpetuating that misnomer in each new piece?). Critics claim the ruling is vague and line-drawing difficult, but this is the case for most laws, yet we still have laws. The ECJ gives people some control over information that can be easily found about them. Forgetting, and remembering, are about a lot more - more than identification, more than efforts at memorialising, more than your family name and recorded moments. Raicu
       
25.02.2015 Julia Powles, Cambridge The so-called ‘territoriality’ debate is really a conflict between effective, global, potentially overreaching delisting, and domain-based enforcement that is default-driven and simple to circumvent. Advocates case-by-case approach (following Van Alsenoy 2 & Koekkoek), where territorial connection informs decision to delist globally or locally. Remarks on abstract, elliptical, dehumanised debate, and stark contrast between copyright/privacy treatment. Powles 8
       
26.02.2015 Lorena Jaume-Palasi, LMU Munich Response to Google advisory council report and German proposal to amend Art. 17 of the DP Regulation to include third party rights (regarded as welcome, but incomplete). Notes there is no single public, but incomplete target groups within which we communicate. Privacy, similarly, is a social construction. Age of data is a poor criterion, because we cannot judge the significance of data to culture and history. Critical of RTBF. Jaume-Palasi 2 [German]
       
02.2015 Wilfred M. McClay, Oklahoma Beautiful meditation on the jarring contrast between the ‘omnivorous, placeless, decontextualised permanence of the internet’ and the ‘ephemeral, whimsical, intimate character’ of communication. Relentless, remorseless data capture feeds an elephant that never forgets; an unsleeping digital beast. It weakens discourse, depriving us of chances to misstep and move on. Memory is core to personal identity - but it is strongest when discerning; built in narratives that are both meaningful and true; not disaggregated data hoards, beyond our control. McClay
       
04.03.2015 Miquel Peguera, Catalunya and Visitor Stanford [Case alert] A Spanish High Court decision [29.12.14] [one of >48 since ECJ ruling - almost all of which favour delisting] found that RTBF does not apply directly against Google’s Blogger publishing platform (by contrast with blog owner themselves). Peguera
       
20.03.2015 Jeffrey Rosen, GWU [Book review of Neil Richards, 'Intellectual Privacy: Rethinking Civil Liberties in the Digital Age' (OUP 2015)] Rosen dismisses RTBF, relegating EU law’s intent to little more than "hurt feelings among celebrities". Richards has a balanced chapter addressing RTBF within the framework of Fair Information Practices. He expresses sympathy as well as concern and, importantly, rejects cynical commercial arguments of some American Libertarians that data is speech. Rosen 2 on Richards
       
11.03.2015 Paul Nemitz, EC Justice; Andrew McLaughlin, Digg; Eric Posner, Chicago; Jonathan Zittrain, Harvard [Debate] Should the US adopt a RTBF? Nemitz and Posner, arguing for the motion, identify that the internet makes new levels of data collection and privacy invasion possible, and RTBF attempts to restore offline protection. McLaughlin and Zittrain, arguing against, argue the RTBF is unworkable, opaque, produces a ‘swiss cheese’ internet, and is better addressed by contextualisation and communal norms. Audience votes against the motion. Zittrain 6, Posner 2, Nemitz, McLaughlin
       
27.03.2015 DPnet Conference 2015 Cambridge conference on EU Internet Regulation after Google Spain. [Below entries]. Program Overview
  Artemi Rallo Lombarte, Jaume I University (and former Director, Spanish DPA) RTBF began in 2007, with Spanish complaints re digitising and search indexing of official gazettes and old news archives 20-30 yrs old. Costeja’s was one of 150 cases. ECJ actually went beyond Spanish DPA: it focused on erasure rights as default, rather than objection rights. Reflecting on ruling, Artemi remarked the fight was marginal and isolated - "victory has many owners, but the Spanish had no allies; not internet activists; not WP29; not mass media". Attributes Snowden revelations as driving CJEU’s case law, here, and on data retention, etc. Rallo Lombarte
  Jef Ausloos, KU Leuven Concepts, rights and terminology surrounding ECJ ruling are continually confused - particularly around ‘RTBF’ and censorship. Recommends moving from binary notion of censorship to more nuanced consideration, and that the ‘RTBF’ be considered an umbrella term, embracing various more specific notions (droit à l’oubli, right to object, right to erasure, and now the right to be delisted). Ausloos 6
  Orla Lynskey, LSE Case law prior to CJEU ruling was ‘entirely consistent’ with eventual decision: 1) data protection has been consistently given broad scope of application; 2) court has been increasingly reliant on the EU Charter (which elevated data protection and privacy to fundamental rights); and 3) court is ‘emboldened’, taking stances with potential significant political consequences. Lynskey 3
  Willem Debeuckelaere, *President, Belgian DPA Ruling is so controversial because it fits a larger narrative of power. By relying on Charter fundamental rights over merely economic interests, ECJ erected proper legal shield around human rights. Described WP29 guidelines as attempting to balance power. Democratic institutions must be ‘brave and courageous’, because ‘in a democratic and decent society, power is laid down in the law, executed by those who are bound by the law, and enforced by courts of justice.’ Debeuckelaere
  William Malcolm, *Google Emphasises glosses in Google’s ‘thoughtful, pragmatic compliance’: 1) requests must nominate a EU country; 2) national ccTLD delisting ‘logical’, but Google is applying regionally; 3) asserts webmaster notice may help users - though, as a rule, Google has just stopped notifying malicious porn sites. Gives six examples of rejections (public figures, political content); no positive examples. DPAs differ on govt records, defamation, past crimes, political content, and recency. One case currently on foot concerning re-publication following a delisting notification. Malcolm
  Julia Powles, Cambridge Outstanding issues: paucity of information re nature & treatment of Google requests prevents adapted solutions; and commentators are unrepresentative of those affected. Debate reflects three deeper issues: 1) vast informational power of Google; 2) disconnect between DP law’s aspirations and ordinary internet usage; and 3) struggle for privacy in a surveillance-based economy. Powles 9
  Eduardo Ustaran, *Hogan Lovells As a result of the ECJ ruling, Google is now ‘THE super-controller’ - no other entity processes more personal data. The case was an unprecedented expansion of DP law, and implies responsibilities well beyond RTBF. It means the search engine model is staggeringly non-compliant with current data protection law. Regulators will not attempt to push that conclusion - showing that the ruling is an imperfect one for an imperfect world. Ustaran
  David Erdos, Cambridge Three considerations for internet regulation after Google Spain: 1) ruling solidifies dominant data protection paradigm, in which few online activities are exempted (special purposes exemptions have bounds; freedom of expression is not strongly protected); 2) implications for a wide range of internet actors (presented some recent empirical work on new media); and 3) DP enforcement to this point has been sporadic and limited - how it evolves will affect significance of 1 and 2. Erdos 3
       
19.04.2015 Maura Migliore, Queen Mary [Case alert] An Italian DPA case [18.12.14] rejected delisting a person mentioned in a story as a minor participant in a crime. However, it held that RTBF applied separately to ‘snippets’ accompanying search results. The DPA found that, even if algorithmically generated, snippets must be corrected if incorrect. Google modified the claimant’s snippets voluntarily during complaint. Migliore
       
27.04.2015 Brian Nussbaum, Albany 'Fossils' are a better analogy than ‘exhaust’ for the artefacts of our digital lives. Our footprints, like those of ancient beasts, are captured - now in bits, instead of mud. They are not ephemeral. We would all benefit from wider recognition of the ethical and social problems associated with data 'fossils', even if author has some superficial scepticism about RTBF. Nussbaum
       
30.04.2015 Daphne Keller, Stanford and *Google (2005-15) Following Spanish blogger case (see Peguera, above), considers data deletion rights against hosting services (Twitter, Facebook, YouTube, etc), arguing for a bright-line rule that such rights should generally not apply, because of potential impact on information retrieval. [Does not consider EU DP law justifications for/against such a conclusion, which might depend on extent of processing by host, as well as the nature of the request/personal data.] Keller
       
30.04.2015 Edward Lee, Chicago-Kent EU law’s delegation of RTBF decision-making to Google may be justified because there is ‘no viable alternative’, in terms of analytics, resources, and ability to create and manage an online processing system. Institutional oversight is of course necessary. Lee