Je ne suis pas Google
Google has now responded, formally requesting today that the CNIL rescind its order, an appeal the French regulator could take up to two months to review. The move marks just the latest, most expansive phase in the ongoing debate – particularly in Europe, but also in Argentina and even the United States – over the degree to which concerns about privacy, including the appearance of citizens’ names in potentially unflattering search engine results, trump rights to free expression.
That debate has been gathering increasing momentum ever since the EU’s Court of Justice ruled last year that a complainant had the right under European privacy law to demand takedown of certain links from search-engine results. You can find a general discussion of that case here and the official English-language version of the court’s decision here.
Google leadership consistently has expressed reservations and criticisms of the right to be forgotten. Notably, Google CEO Larry Page remarked shortly after the decision that the ruling would “be used by other governments that aren’t as forward and progressive as Europe to do bad things.”
While the court tried to express some guidelines for the RTBF —the opinion states that links should come down if they “appear to be inadequate, irrelevant or no longer relevant, or excessive in relation to those purposes and in the light of the time that has elapsed”— it failed to state any principles that limit when takedown demands are appropriate. As a result, Google has been compelled to strike its own balances in determining whether a takedown demand should be honored.
It should be noted that Google’s search engine is even more widely used in France than it is here. In the United States, the desktop market share for Google search is perhaps 68 percent. In France, by contrast, Google commands a market share of more than 90 percent. (You’d get somewhat different numbers if mobile search were included in the tally.) Google’s share of the French market is particularly impressive, given that Yahoo’s French-language search was offered for years before Google got its foot in the door.
While it may have won the market’s popularity contest decisively among francophones, the French government (like many in the EU) is reflexively anti-corporate and suspicious of commercial enterprises, especially those based in the United States. That anti-corporate sentiment has led to somewhat anomalous pro-censorship decisions by a government that, only a few months ago, made a point of showing free-speech solidarity with the journal Charlie Hebdo.
Even if, as some have argued, Google has the human and financial resources to make case-by-case determinations about whether to honor a takedown demand, not every company has Google’s deep pockets. New startups that hope to be the next Microsoft or Apple or Google can’t hire whole teams of lawyers to review a huge volume of RTBF demands. And those lawyers would be in addition to the legal teams they already need to respond to copyright-infringement takedown demands, not to mention all the other legal work, from trademark-infringement claims to defamation claims to reviewing government orders to remove online listings for companies that sell drugs illegally.
In fact, most technology companies don’t hire lawyers at all in their early phases. The most prudent strategy for such startups is just to remove links or other content in response to every demand. Over the long run, it’s not hard to see how this default impulse would constrain freedom of expression and the equally important freedom of inquiry on the Internet.
On the other hand, if you were seeking to cement Google’s pre-eminence as the dominant search engine for all time, you could hardly do better than to impose the RTBF, and other soon-to-be-discovered rights, in precisely the way France now seeks to do.
Despite CNIL’s claim that it is acting in “accordance with the CJEU judgement,” the judgment stopped short of the new territory into which French regulators are seeking to expand. They’re seeking, expressly, to demand content takedown from anyone on the Internet anywhere in the world. Even France’s ancien régime in the age of Louis XIV did not assert its powers that expansively. Properly, France and the other EU nations should be skeptical of claiming worldwide powers—just as, in other contexts, those nations ask the same of the United States.
As it happens, I’ve been dealing with RTBF issues for about six years, ever since I was general counsel at the Wikimedia Foundation (which runs Wikipedia and other free informational resources). The foundation was sued by German ex-convicts (you can find me discussing the case here) who wanted to suppress archived news reports of their guilt in a highly publicized murder case. It turns out to be hard to get a job when a potential employer looks you up online and the first thing he or she finds is the Wikipedia article about your murder conviction.
I understood and, to some extent, sympathized with the ex-convicts’ concerns; I do believe one should have the opportunity to start over, at least to some degree. But I knew Wikipedia could never survive volume of takedown demands I foresaw would follow if we capitulated to this demand. Wikipedia, although hugely popular, is orders of magnitude less rich than Google Inc. is.
What I opted to do back in 2009 was to take the story of their demands to the press. The result? Wolfgang Werlé and Manfred Lauber, the ex-convicts, arguably became more famous as a result of their demands than they would have been if they had focused more on their job hunts than on suing Internet newspapers and encyclopedias.
But that kind of happy outcome can’t be guaranteed all the time. Only a minority of complainants will turn out to be convicted murderers, although some larger number may turn out to have been convicted on other crimes. The public interest in remembering the facts about trials and convictions (and acquittals!) is, in my view, at least as strong as any “right to be forgotten.” Which means that, just as we each should feel free to state “Je Suis Charlie,” each of us should also be empowered to argue, with merit, “I am not Google.”