Balancing rights (unless we are talking about copyright)

By EDRi · October 22, 2014

Recently Google was asked (spiced up with a threat of a 100 million dollar lawsuit) by an attorney representing “over a dozen” celebrities to take down pictures of his clients which had been hacked from their respective iCloud accounts and published in different websites.

Google quickly reacted removing those pictures from its blogging and social media services, although the attorney still complained saying it took too long and that the delay had led to Google making millions “profiting from the victimisation of women”. It is to be noted that Google’s explanation to remove the pictures was because of the “community guidelines and policy violations (e.g. nudity and privacy violation) on YouTube, Blogger and Google+”. In reality, nothing really matters except copyright – because Google will always automatically delete content, if they receive a valid notice under US law. Unsurprisingly, therefore, Google added that, concerning the search engine, they remove images when they receive “valid copyright (DMCA) notices”.

When a copyright complaint was made about illegally copied naked pictures of celebrities, Google, consistent with its policy, rapidly de-indexed the content in question. When Google received a Tweet indicating that a trade-mark was the subject of an unfair search result in Google image search, it resolved the problem within 59 minutes. When Mario Costeja González reported an unfair search result, it took over four years and appeals to the highest EU court before Google could be persuaded to take action.

Sadly, the concept is spreading that, if you cannot assert their rights through copyright or trademark rights, you are a second class citizen. The current Italian Presidency of the Council of the European Union also follows this logic. A “paper” sent by the Presidency on 11 September to Member States on enforcement of copyright and other rights suggested various measures that could be imposed by intermediaries – such as “know your customer”, “follow the money” and a more expansive use of injunctions. So, when such measures are used to enforce copyright, they are acceptable and collateral damage to fundamental rights of citizens can be ignored.

But the Italian Presidency decided to follow Groucho Marx’ famous statement “these are my principles; if you don’t like them I have others”. In a subsequent communication from 29 September, the Italian Presidency urged a balancing of rights when dealing with Data Protection matters in the so-called “right to be forgotten”. Delegations worried, it explained, that the “interest of the public at large to have access to information may end up being “underweighted” in the balancing process by the controller in particular where the latter is a search engine”. It is definitely important to ensure that fundamental rights are not “underweighted”, but it is important that this happen in relation to all fundamental rights. Otherwise when laws need to be enforced in the EU we would end up with two different categories of rights.

Enforcement of intellectual property rights – Presidency paper (11.09.2014)

Comments from the Italian Presidency on the right to be forgotten and the Google judgment (29.09.2014)