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Google’s ‘Right to be Forgotten’ offensive goes spectacularly off the rails

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By Simon Davies

Google’s European roadshow, which the company hopes will destabilise a new EU court ruling on the Right to be Forgotten (RTBF), has backfired spectacularly.

Google had hoped that the roadshow would trigger a division within the digital rights movement and stoke a media firestorm of protest against a decision by Europe’s highest court that provides people with a right to limit search access to pages that contain certain erroneous or outdated personal content. Google opposes the ruling, arguing that publication rights should trump privacy rights.

Google's RTBF event in Madrid: engineered to look like a supreme court

Google’s RTBF event in Madrid: engineered to look like a supreme court

However, the third meeting of the roadshow – held in Paris last week – left the advertising giant exposed and isolated. Not only did media fail to buy in to Google’s game plan, but there was barely any coverage whatever of the meeting.

The dynamics of the Paris meeting also markedly shifted. Instead of triggering an exaggerated polemic of privacy v. censorship, the event highlighted Google’s misrepresentation of the RTBF court ruling and the company’s continuing failure to abide by EU law.

A representative of France’s highest administrative court, the Conseil d’Etat, stated during the meeting in Paris that Google’s approach went against European law.

Throwing petrol onto the flames, Google chief legal officer David Drummond  then responded: “There are differences of opinion of the scope of the right to be forgotten. Our belief is that the best way to do it is in a narrow way.”

Drummond’s statement not only enshrined Google’s long-standing hostility to privacy, but also its contempt for Europe’s rule of law. If any position could be calculated to irritate judges, reformers and politicians, that was it.

Rather than generating a simple polemic over a purported conflict of rights, the roadshow and the subsequent coverage have raised crucial questions that Google has so far failed to answer:

Drummond’s statement not only enshrined Google’s long-standing hostility to privacy, but also its contempt for Europe’s rule of law. If any position could be calculated to irritate judges, reformers and politicians, that was it.

*       Does Google recognize the fundamental privacy interests of RTBF requestors?   If it does, how does it reconcile its conduct with those interests?

*       How does Google square its own rhetoric with the fact that the judgment clearly requires a balancing of the private and public interests, and clearly provides that web publishers can benefit from a journalistic exception?

*       Wouldn’t it be more appropriate for Google to pause its public discussions on the case until the Article 29 Working Party issues its guidance on the judgment?

*       Will Google commit to implementing any of the guidance published by the Article 29 Working Party about the right to be forgotten?

*       Now that the CJEU has clearly held that Google is subject to European data protection law, will Google also now reconsider its other practices that have been held to infringe that law, such as its 2012 Privacy Policy?

The roadshow has also failed to spark division in the digital rights movement. A recent letter signed by eleven European rights organisations, representing both privacy and access, warned Google’s RTBF advisory council that it must respect European law and European rights. While this letter did not signal full consensus within the rights community, it did highlight Google’s misrepresentation and manipulation of the ruling.

The roadshow has also irritated Europe’s privacy regulators, who have warned Google Chief Executive Larry Page that his company “must meet its obligations” under European privacy rules, after its practices were found to be in violation of rules in multiple countries, including France and Spain, over the last two years.

Paul Nemitz, director of fundamental rights in the European Commission, also blasted Google on its handling of the European court’s right to be forgotten ruling. Nemitz said, “Some here reckon what Google does is a passive-aggressive move in the face of the right to be forgotten… Maybe Google wants a Lex Google in the legislation which says they are not a [data] controller.”

In terms of Google’s roadshow, Nemitz said, “If they outsourced [the takedown requests] to a normal midsize law firm in every member state, they could have done this quickly, without fuss. Instead, they start all this circus… it’s a very smart PR exercise to keep the conversation going with a certain aim, and one wonders what that aim is.”

But perhaps this PR exercise is not as smart as Nemitz initially believed. Instead of constructing an image of custodian of the public interest, Google has inched even further toward the role of enemy of the Rule of Law. That can’t be good news for any corporation, let alone one that is already under investigation over rights violations, tax obligations and competition law.