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Google’s false claims to a French court dangerously compromise the company’s integrity

Slide2By Simon Davies

Please note update at the end of this article

Google yesterday broke new ground in its increasingly bitter dispute with European data protection authorities by reportedly giving false and misleading testimony to France’s highest administrative court.

Google had made an application to the Conseil d’Etat, seeking to overturn a ruling by France’s privacy authority – the Commission Nationale de l’Informatique et des Libertés (CNIL) – which last month determined that the company had breached French data protection law.

cnil-05-662b0CNIL had required Google to pay the maximum fine possible – €150,000 ($204,000) – and to post a notice of the fact on its home page for a period of 48 hours. It is this latter requirement  that Google found particularly objectionable.

Yesterday’s hearing, however, took an unexpected turn when Google’s representative, Patrice Spinosi told the court: “This is something we’ve never seen before… Google has always maintained that page in a virgin state.

Google’s assertion to the court was that its landing page had always been a pristine and uncluttered space. Interference with that simplicity could be commercially disastrous.

The claim sparked astonishment and controversy in the court, with representatives of the CNIL immediately protesting that the statement was incorrect and that Google advertises its own services on the home page. Google users, they added, had a right to know that authorities had sanctioned the company.

Google’s testimony appears to be incontestably false. In 2011, for example, the company began running homepage ads for its Chrome browser, followed in subsequent years by a spate of ads for other Google products.The company has also experimented with the use of homepage banner ads.

To misrepresent the facts to a court of law raises important issues of integrity and trust that all European authorities should bear in mind.

Such efforts to exploit the company’s landing page raise significant competition implications. Google is already the subject of a current EU competition inquiry over claims that it enjoys an unfair market dominance.

Nick Pickles, director of the UK-based NGO Big Brother Watch, said: “A health warning about infringing privacy rights is the perfect way to test how consumers value their privacy and allows them to make their own judgement about how serious are infringements are. Similar notices were required in the Samsung v Apple case and it is clear that they are a powerful way of deterring companies from breaking the law. Indeed, given the trivial amounts of money involved in data protection enforcement, I’d say they are a much more powerful deterrent than the existing financial penalty regime.”

“There is a real risk that fines become a cost of doing business, especially when they amount to a miniscule fraction of the profits made by companies like Google. If we want the market to work and companies to be incentives to respect privacy and the law then these sort of warnings are an essential part of the enforcement landscape and  it will allow consumers to make a genuinely informed decision about which services they trust with their personal information.”

Google has historically argued that the value and integrity of its homepage derives from its simplicity. The company has thus resisted attempts to change that format – even when the law requires additional content.

In 2008, for example, the Electronic Privacy Information Center (EPIC) in the US uncovered the fact that Google was failing to comply with a California state law that required the company to provide a link on its homepage to its privacy policy. EPIC alerted California based privacy groups who then wrote to Google’s Eric Schmidt to explain that he needed to comply with the California law.

The letter from the privacy groups set off a media firestorm but Google claimed that to add anything to the homepage would alter its “pristine” look. Despite the legal requirement, Google refused to budge. The privacy groups then threatened to file a lawsuit, eventually forcing the company to add a homepage link to its privacy policy.

Google is facing an array of investigations over the legality of its operations. Last November, the Netherlands’s data watchdog said the company had breached Dutch data protection law. The following month Spain’s privacy agency fined Google €900,000 for similar offences. Regulators in Germany, Italy and the UK are in the midst of similar investigations that could lead to penalties.

Google can no longer use the “pristine” defence to avoid its legal obligations – and to misrepresent the facts to a court of law raises important issues of integrity and trust that all European authorities should bear in mind.

 

Google finally caves to French legal demands for it to place a notice of the penalty levied against the company for transgression of data protection law.

Google finally caves to French legal demands for it to place a notice of the penalty levied against the company for transgression of data protection law.

 POST SCRIPT

The appeal described above was denied, and on the following day Google published this “badge of shame” on its .fr site. The notice translates in English to:

Alert: CNIL (Commission nationale de l’informatique et des libertés/ has sentenced Google to a 150,000 euro fine for breach of the ‘information and freedoms’ law. Information available at the following address: http://www.cnil.fr/linstitution/missions/sanctionner/Google/

NB: Please note the Chrome advertisement at top right.