The RTBF Takedown Notice: DMCA Takedown’s New Cousin

Will Google start disabling search result links to out-of-date information about you and enforce a “right to be forgotten”? Only if you’re in Europe… so far.

When you Google yourself, do things come up that you wish would just be forgotten? That happened to Mario Costeja González, who had financial troubles in the late 1990s. Some of his property was seized, and in 1998 a Spanish newspaper reported on its auction for the recovery of his social security debts. By the late 2000s, the proceedings had been resolved for a number of years. Mr. Costeja González felt the stories were irrelevant, and was upset that Google search results pointing to the newspaper’s website kept reminding friends, family, and potential clients who searched him that he had made mistakes when he was younger.

Spanish Guy Sues to Get His Financial Info Forgotten

In 2010, Mr. Costeja González brought an action with the Spanish Data Protection Agency (the AEPD) requesting that the newspaper remove the stories from its website, and that Google stop providing search results pointing to the website. He brought his claim under a 1995 European Union personal data privacy law, known as Directive 95/46/EC of the European Parliament. The AEPD found that the law did not apply to the newspapers, since they had lawfully published the information. However, the AEPD found that the law did apply to Google, and asked Google to disable access to these articles in the newspaper. Google appealed to the National High Court in Spain, which in turn referred specific questions at issue to the Court of Justice of the European Union.

European Court Finds that Search Results are Subject to Privacy Law

In May 2014, the European Union court found that the privacy law applies to Google search results. There was some close reading of the language of the privacy law and some technical discussion, but basically it said that Google search results acted like a re-presentation of out-of-date information in violation of the privacy law. In particular, the court noted that in spite of the relatively passive and neutral function of search engines, they are nonetheless powerful and have the ability to “affect significantly the fundamental rights to privacy and to the protection of personal data…” That holistic look at the role of Google Search in our ability to protect our privacy led the court to find that Mr. Costeja González’s privacy rights outweighed Google’s economic interest in processing the data about him. The court ordered Google to disable out-of-date results in response to searches for a person’s name upon a lawful request. Thus, search engines in Europe must protect an individual’s right to be forgotten.

Google Starts Processing RTBF Requests in Europe

In the months since this ruling was handed down, Google has implemented a system for handling RTBF takedowns. European Google search results for a person’s name note that “[s]ome results may have been removed under data protection law in Europe.” The Google FAQ page discusses their RTBF policy. Google set up a webform for making an RTBF request, where you list your name and the results you want blocked. In practice so far, Google is granting a majority of RTBF requests. There has been a backlash to these requests, including websites dedicated to publicizing takedown requests, and online news sources publicizing RTBF takedown requests aimed at their publications, both of which bring attention to the out-of-date information all over again. This phenomenon is often referred to as the Streisand Effect, when your efforts to protect your privacy end up bringing more attention to what you were hoping to hide. Further complicating matters, some RTBF takedown requests are more sympathetic than others. The implementation of the law by Google has been complicated, and there will likely be plenty of follow-up in European courts to make sure that Google’s RTBF takedown process comports with the spirit of the law.

RTBF in the USA?

The RTBF takedown only applies in Europe, but apparently there is a demand for it arising in the United States. The website helps users process their RTBF requests, and it reports that about a third of the requests are coming from the United States, even though it would only apply to European sites, and may not be enforceable by US citizens at all.  However, it shows that hand-in-hand with Americans’ understanding of and reverence for the First Amendment, there is also interest in letting old unfavorable stories fade away. This European of takedown request is cousins with the DMCA takedown request, in that both allow ISPs to act as passive conduits of information while allowing people to protect their rights. Like the DMCA process, Google notifies publishers when links to their publications are the subject of an RTBF request.  Google hates the ruling and the system imposed by it, but it doesn’t appear that the RTBF is going away in Europe. Since search engines are going to be stuck processing RTBF claims in Europe, and have built the infrastructure for it, it will be interesting to see if RTBF claims will migrate to Google in the United States in one form or another, side-by-side with DMCA requests. I don’t expect there to be any legal enforcement or even acknowledgement of the right to be forgotten. It just doesn’t comport with the First Amendment, and hostility to impractical regulation prevalent in American culture. However, it may come to exist as a business practice by more reputable companies, demanded by the all-powerful consumer of Internet services. We saw a similar “takedown mission creep” in the US, where DMCA-style takedowns have become standard for other kinds of online claims beyond copyright, like trademark, privacy, abuse, and counterfeiting. It is not hard to imagine that demand to be forgotten in the US will lead to the expansion of a practical enforcement of the right to be forgotten based on user demand within certain sites.

Stay tuned!

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