The recent decision of the European Court of Justice in Google Spain was a surprise to commentators and legal experts both in the EU and the US. Europe’s top court determined that Google must establish a means for individuals in the EU to request that links to information about them be taken down, a process Google has now started. The decision applied the EU’s data protection law, which is more protective of privacy than US law. In addition, the US Supreme Court’s interpretation of the First Amendment would likely override any privacy law that provided for online deletion of information. So does that mean that the decision has no importance to Google in the US?
I argue in a recent article in the North Carolina Journal of Legal Technology that, while Google cannot legally be forced to remove information under US law, it is nonetheless in its interests to establish a forum for considering such requests and doing so in a more transparent manner than its current online procedure. Just like in Europe, individuals in the US object to the way that Google’s confidential algorithms result in certain information topping search results of proper names, whether it is because that information is false, is outdated, or is otherwise harmful. But unlike the ECJ decision, which requires that Google delete such links in some (as yet to be clarified) circumstances, my suggestion is that Google “demote” such links in the US. This result would not necessitate deletion of information with its connotation of censorship, but would promote the outcome sought by most individuals objecting to certain links – that they not appear at the top of Google search results for their names.
The plaintiff in Google Spain objected to search results linking to a 16-year-old story about his house being foreclosed. The ECJ rejected Google’s argument that deletion requests should be addressed only to the website (such as a newspaper) originally publishing the information, and pointed out the importance of the service that Google offers – a search of an individual’s name, which “enables any internet user to obtain through the list of results a structured overview of the information relating to that individual that can be found on the internet — information which potentially concerns a vast number of aspects of his private life and which, without the search engine, could not have been interconnected or could have been only with great difficulty.” The ECJ suggested that the balance in considering such requests would be between the individual’s interest in erasing inadequate, irrelevant or no longer relevant information, and the public interest in the information.
In the US, Google has received, and rejected, requests for deletion of links for reasons ranging from defamation to bullying. But Google offers little clear guidance as to how it reviews such requests, much less what reasons might lead it to delete a link. (Its removals help page suggests only that it might delete links containing personal financial information like social security numbers or “offensive images.”) Google’s response to almost any complaint by an individual that information is untrue or offensive is that the individual should take up the issue with the website itself on which the offending information is located. In Europe, this solution was rejected, with the court noting the importance of Google itself as a controller of information.
In determining the format and criteria for allowing European citizens to request deletion of search results, Google should keep in mind that US citizens too would benefit from the ability to offer input as to why certain information – be it outdated, false, concerning a minor or otherwise harmful – is not of prime “relevance” to searches of their names.