Dancing to the beat of the Google drum

With rather wearying predictability, certain parts of the media are in uproar about the removal by Google of search results linking to a positive article about a young artist. Roy Greenslade, in the Guardian, writes

The Worcester News has been the victim of one of the more bizarre examples of the European court’s so-called “right to be forgotten” ruling.

The paper was told by Google that it was removing from its search archive an article in praise of a young artist.

Yes, you read that correctly. A positive story published five years ago about Dan Roach, who was then on the verge of gaining a degree in fine art, had to be taken down.

Although no one knows who made the request to Google, it is presumed to be the artist himself, as he had previously asked the paper itself to remove the piece,  on the basis that he felt it didn’t reflect the work he is producing now. But there is a bigger story here, and in my opinion it’s one of Google selling itself as an unwilling censor, and of media uncritically buying it.

Firstly, Google had no obligation to remove the results. The judgment of the Court of Justice of the European Union (CJEU) in the Google Spain case was controversial, and problematic, but its effect was certainly not to oblige a search engine to respond to a takedown request without considering whether it has a legal obligation to do so. What it did say was that, although as a rule data subjects’ rights to removal override the interest of the general public having access to the information delivered by a search query, there may be particular reasons why the balance might go the other way.

Furthermore, even if the artist here had a legitimate complaint that the results constituted his personal data, and that the continued processing by Google was inadequate, inaccurate, excessive or continuing for longer than was necessary (none of which, I would submit, would actually be likely to apply in this case), Google could simply refuse to comply with the takedown request. At that point, the requester would be left with two options: sue, or complain to the Information Commissioner’s Office (ICO). The former option is an interesting one (and I wonder if any such small claims cases will be brought in the County Court) but I think in the majority of cases people will be likely to take the latter. However, if the ICO receives a complaint, it appears that the first thing it is likely to do is refer the person to the publisher of the information in question. In a blog post in August the Deputy Commissioner David Smith said

We’re about to update our website* with advice on when an individual should complain to us, what they need to tell us and how, in some cases, they might be better off pursuing their complaint with the original publisher and not just the search engine [emphasis added]

This is in line with their new approach to handling complaints by data subjects – which is effectively telling them to go off and resolve it with the data controller in the first place.

Even if the complaint does make its way to an ICO case officer, what that officer will be doing is assessing – pursuant to section 42 of the Data Protection Act 1998 (DPA) – “whether it is likely or unlikely that the processing has been or is being carried out in compliance with the provisions of [the DPA]”. What the ICO is not doing is determining an appeal. An assessment of “compliance not likely” is no more than that – it does not oblige the data controller to take action (although it may be accompanied by recommendations). An assessment of “compliance likely”, moreover, leaves an aggrieved data subject with no other option but to attempt to sue the data controller. Contrary to what Information Commissioner Christopher Graham said at the recent Rewriting History debate, there is no right of appeal to the Information Tribunal in these circumstances.

Of course the ICO could, in addition to making a “compliance not likely” assessment, serve Google with an enforcement notice under section 42 DPA requiring them to remove the results. An enforcement notice does have proper legal force, and it is a criminal offence not comply with one. But they are rare creatures. If the ICO does ever serve one on Google things will get interesting, but let’s not hold our breath.

So, simply refusing to take down the results would, certainly in the short term, cause Google no trouble, nor attract any sanction.

Secondly (sorry, that was a long “firstly”) Google appear to have notified the paper of the takedown, in the same way they notified various journalists of takedowns of their pieces back in June this year (with, again, the predictable result that the journalists were outraged, and republicised the apparently taken down information). The ICO has identified that this practice by Google may in itself constitute unfair and unlawful processing: David Smith says

We can certainly see an argument for informing publishers that a link to their content has been taken down. However, in some cases, informing the publisher has led to the complained about information being republished, while in other cases results that are taken down will link to content that is far from legitimate – for example to hate sites of various sorts. In cases like that we can see why informing the content publisher could exacerbate an already difficult situation and could in itself have a very detrimental effect on the complainant’s privacy

Google is a huge and hugely rich organisation. It appears to be trying to chip away at the CJEU judgment by making it look ridiculous. And in doing so it is cleverly using the media to help portray it as a passive actor – victim, along with the media, of censorship. As I’ve written previously, Google is anything but passive – it has algorithms which prioritise certain results above others, for commercial reasons, and it will readily remove search results upon receipt of claims that the links are to copyright material. Those elements of the media who are expressing outrage at the spurious removal of links might take a moment to reflect whether Google is really as interested in freedom of expression as they are, and, if not, why it is acting as it is.

 
*At the time of writing this advice does not appear to have been made available on the ICO website.