Why the EU’s privacy ruling is the latest legal blow for Google

Last week’s ruling by the European Union (EU) Court of Justice that citizens have a right to request search engines remove information about them from their search results is already causing chaos in Google’s operations with the new flood of requests.

What is the actual ruling?

The EU Court of Justice ruling immediately affects 500 million citizens from 28 European countries. It means that an individual can ask Google or other internet search services to remove information and links to web pages that are published by third parties, such as newspapers, containing information relating to them. Failure by the search service to remove the links can result in fines. However, it does not mean the publisher or website is required to alter or remove the actual article.

The EU is defending the ruling by stating that in cases where the public interest case is more important and vital than the individual’s privacy rights, the links should not be taken down.

What does this mean for an individual?

This means that a person can remove some of their ugly past from Google and the public internet reach even if the facts are true. An individual can demand that a search engine take down certain information and results that they say infringes their privacy or is no longer relevant. If the search engine chooses not to remove the link, the person has a right to request a court order.

What does this mean for Google?

The ruling has significant implications for Google. Prior to this judgment, Google was receiving approximately 5.3 million removal requests per week for copyright infringement alone.

With this new take-down requirement, Google will potentially have to hire an army of experts just to manage, assess merits of each request and remove any controversial links.

One of the main issues with this court decision is that the criteria for determining which take-down requests are legitimate is not clear, particularly where public figures are involved and public interest may be argued. With the right of individuals to seek a court order to enforce their request, this means search engines are likely to act on the side of caution and remove more links than necessary to avoid liability.

The other issue that may prove difficult is that the search engine will have to be able to authenticate the request, to ensure the person asking for the link’s removal is actually the person they claim to be.

And the third issue is the most disturbing. Many of the recent requests since this judgment include those from convicted criminals: a man convicted of possessing child pornography; a man convicted of trying to kill his family; and a man convicted of running a tax scam are all among those requesting links and articles about their convictions be wiped.

The BBC reportedly learned that more than half the requests from UK individuals sent to Google after the ruling involved convicted criminals.

If Google refuses or ignores an individual’s takedown demand, Google could potentially face substantial litigation costs as well as fines. Not only is this a large compliance burden for Google but it means any search results compiled for analysis or general information purposes will be affected. This is a huge setback for Google and there is no appeal process for this decision.

Does this affect the rest of the world?

It is not year clear how this ruling affects countries outside of Europe.

Currently, it means that if you are in the US and do the same search on Google for something in the EU that has deleted links, you still may be able to access and find the articles and references which were removed from the EU search engine.

However, the court specifically stated that companies cannot get out of complying with the judgment by stating that their servers are outside of Europe. As it’s not yet clear to Google how far reaching this ruling will be applied, so we may see the implications of this in the US, Australia and the rest of the world at some point.

It seems there is a direct conflict between the right to be forgotten and a right to know. One wonders if this is not a case of wide-sweeping censorship.

Vanessa Emilio is a qualified lawyer, company secretary and practise director of legal templates business Legal123.com.au. She has more than 15 years’ experience in corporate, banking, finance and trust law. After starting her career at Freehills, she worked in Sydney for a range of Australian and international financial institutions – including Macquarie Bank, Citibank, Trust Company and Bank of New York Mellon – before founding Legal123 in 2009. This article first appeared on StartupSmart.