Google’s forgetful approach to the “right to be forgotten”

Google is unquestionably a pioneer with regard to transparency reporting in the online environment. It was among the first to demand more transparency regarding government restrictions on freedom of communication and access to user data. The company has continued to learn and refine its processes. It has produced a consistent methodology for the various types of restriction, making their reports easier to read, thereby further increasing transparency.

None of this, however, applies to actions taken as a result of the famous and incorrectly named “right to be forgotten” ruling. In this case, the Costeja ruling of the Court of Justice of the European Union (CJEU), Google must de-link individual’s names to search results about them that are “inaccurate, inadequate, irrelevant or excessive”. Under the ruling, nothing is deleted and nothing is removed from Google’s index.

On the front page of Google’s transparency reporting, there are section on government-based deletions called “government requests to remove content” and a section on copyright removals called “requests by copyright owners to remove search results”. The section reporting on the EU data protection ruling is called “European privacy requests for search removals”. While the first two (government and copyright) lead to search results being removed from Google’s index, nothing is removed from Google’s index under the EU data protection ruling.

If one then clicks on either “government requests to remove content” or “requests by copyright owners to remove search results,” the next page shows a graph that shows the evolution of removal requests over time. This is very useful to see both the volume of removals and the overall trends.

However, if one clicks on “European privacy requests for search removals” there is no graph. All that is presented is the total amount of requests. The words “remove” and “removal” appear 26 times on the page, despite the fact that nothing is actually removed from Google’s index. Even the first line of the “transparency” page is not accurate, stating that “in a May 2014 ruling, Google Spain vs. AEPD and Mario Costeja González, the Court of Justice of the European Union found that individuals have the right to ask search engines like Google to remove certain results about them.”

The question is why would Google, having produced a very good, clear methodology for displaying statistics for actual content removals, choose to misrepresent de-linking of names with search results as “removals” and not the methodology that it has, laudably, pioneered? One cannot help being left with the impression that the figures do not tell the story that Google is trying to tell. From 1 June 2014, when it launched the tool to allow people to exercise their rights under the CJEU, Google has received 658 613 requests (which is approximately 725 per day). In the period 11 October 2016 to 10 November 2016, it apparently (based on our observations of the numbers published on the page) received 13 436 requests (or approximately 447 per day), which is significantly lower than the overall average. This risks creating the impression that a reduction in numbers, at a time when Google is using the ruling to bash European data protection rules at every opportunity does not exactly fit with the public relations spin.

Google is struggling with working out its own views on this topic, which might explain some incoherence. Google believes that it should not be required to adjust its search algorithms to protect privacy. However, it also has voluntarily chosen to adjust its search algorithms to protect privacy in relation to abusive “mug shot websites” (by pushing them down the results list). Google believes that it should not have to de-link names with “inaccurate, inadequate, irrelevant or excessive” on a global level. However, Google believes that it should de-index revenge porn globally in order to protect victims. Google thinks that national laws should not have extra-territorial effect. However, Google voluntarily gives extra-territorial effect to US copyright law.

Google has been a pioneer in transparency reporting. It should not forget this.

Google Transparency Report
https://www.google.com/transparencyreport/

CJEU judgement: Google Spain vs. Costeja
http://curia.europa.eu/juris/document/document.jsf?docid=152065&doclang=en

(Contribution by Joe McNamee, EDRi)