A search on someone’s name in Google reveals a great deal about them. This might include where they work or went to school, as well as more private information such as their religion, sex life, or criminal convictions.
In 2014, the European Court of Justice (CJEU) decided that individuals can protect their privacy by delisting search results. If a result leads to information about you that is old or inaccurate, you can ask the search engine to remove it. However, the judgment left open two key issues: is it a global right, and how does it apply to particularly sensitive information? On 10 January, the CJEU received two opinions from the court’s advocate general that largely suggest a win for Google and a win for freedom of speech.
Most importantly, the delisting right is not a global right – it only applies to searches made in the EU. In other words, someone searching in Chicago or Canberra will not have their results filtered based on European privacy rules. This has been broadly welcomed as protecting the right to access information, and avoids a difficult face-off with countries such as the US, who would find these restrictions incompatible with their own broad concepts of freedom of speech.
A global right would also be the thin end of the wedge. Other countries would also want to suppress search results globally. In the case of authoritarian states, those requests might be based on very different value systems. This could quickly reduce Google’s search engine to a list of the anodyne and inoffensive.
If this is a clear win for the tech giant, the answer to the second question is more mixed. It considers if sensitive results must be removed on request. In other words, if the results refer to a politician’s extra-marital affair or the conviction of a senior businessman, can Google be forced to remove those results regardless of whether the information is recent, true, and in the public interest.
On first glance, the opinion is couched in uncompromising terms – the company must comply with the strict rules on the use of sensitive personal information, and so comply with delisting requests “as a matter of course”. Dig a little deeper, and the position is more nuanced. In some cases, Google can comply with these rules (UK courts have already decided this is the case for information about convictions) or may be able to rely on the public interest in making that information accessible. In practice, this might not extend the existing delisting right very far.
The CJEU will give a final ruling in the next few months. It normally follows the opinion of the advocate general, but surprises can happen. You can bet that Google, and activists on both sides of the issue, will be paying close attention.
This opinion was first published in City AM.