May 19, 2014
Well, it finally happened. Those few of us who practice international media law have been waiting for the “right to be forgotten” hammer to be dropped and the European Court of Justice did just that last week. As has been widely written about, the ECJ held that search engine Google is not endeavoring in journalism by aggregating algorithmically generated links to stories that allegedly violate the EU’s broad definition of privacy. Understanding how this ruling may impact you or your clients requires a little fundamental background.
Privacy Not libel
It must be remembered that the European Data Directive and the European Convention on Human Rights Article 8 both establish that privacy is a proprietary right held by individuals. The invasion of privacy has nothing to do with the truth, falsity, or defamatory nature of the statement in question. In short, EU law asks the publisher “what right do you have to tell the world about this person?” It is true that there is a countervailing “public interest” element to the jurisprudence, but for the moment it’s essential to remember that for privacy matters, the truth or falsity of the linked-to story is not germane.
Not Just Google
Although Google was the named party in this case, the way the ECJ case defined search engine operators, a wide swath of news organizations and even individual blogs and company websites with search functions may be bound by the holding of this case. For example, Dow Jones, Reuters and my former employer Bloomberg all offer their subscribers news search functions that not only display stories written by those news organizations, but often provide headlines and summaries of other news organizations’ stories with links to those stories.
If sued in the United States over such links, they would invariably invoke the Section 230 immunity provided to merely passive Internet service providers. In the case of applying the ECJ holding though, this argument cuts against that position: central to the ECJ ruling is the holding that mere robots make no journalistic effort deserving protection under the ECHR’s Article 10, which provides a counterbalance for free expression. Attorneys whose clients operate any kind of online aggregation function should think about from where and how they scrape stories from other publishers.
It’s the Jurisdiction, Stupid
Corporate titans like Google and Microsoft, as well as global news organizations have little choice but to deal with this problem. In addressing the jurisdictional issue, the ECJ raised the analog of “general jurisdiction” that we understand in United States civil procedure. In short, if you have offices, assets, employees or generally do business in one of the EU states, the odds are that you are going to be subject to the jurisdictional reach of this jurisprudence, regardless of the server location.
The trickier part of the analysis is whether an entity with no EU-based jurisdiction could be subject to the enforcement of a judgment. EU Commissioner Viviane Reding told Reuters that “Companies can no longer hide behind their servers being based in California or anywhere else in the world.” That’s not so clear. By contrast, billionaire Jimmy Wales, the founder of Wikipedia said in an interview last week “Good luck coming after us.” That’s not so clear, either. He may be right, but it’s far from simple.
The recently enacted SPEECH Act that immunizes US entities from the enforcement of libel judgments contrary to First Amendment principles is limited to libel claims. But we’re not talking about libel claims: these are privacy claims and it would take considerable litigation to convince a court that there is penumbral protection, and it would take a fair amount of litigation to convince a US court that common-law precedent applies. There is such precedent where US courts refused to enforce speech restrictive judgments from Europe. But it is worth noting that these judgments are based on a lack of Due Process, not First Amendment grounds.
Procedure and Public Policy
It remains to be seen how the largest stakeholders resolve this issue. The Wall Street Journal is reporting that Google may simply create a reporting mechanism not unlike their DMCA page, where complaining parties flag a search result and Google simply removes that link. It is unclear whether Google would block that link from access in the EU or worldwide.
It is key to understand that the ECJ is not a court of first instance. Theoretically, a party complaining about a link would have to first bring an action in either their local court or with the Data Protection Authority of their nation and obtain a favorable ruling. That would require application of Article 10 analysis, as that requires that speech restrictive means be balanced against the public interest of the story in question. The ECJ ruling noted this in passing by reference to whether or not the complaining party was a “public figure.”
The public policy implications of removing some links ought to be self-evident: the BBC reports that complaints have already been made to Google about links to stories about a man who tried to kill members of his own family, a convicted cyberstalker, and a man convicted of running a tax scam.
This puts aggregators in the unenviable position of having to choose whether or not to spend the time and resources to defend a story they did not write. Based on my experience, I doubt highly that Google, Microsoft, Bloomberg or any other aggregator can or will assume the role of defending the substance of a story to which they merely link.
Transparency is the Solution
Just as the DMCA allows a counter-notice procedure, data aggregators may be best advised to take the following approach: if a party complains that a link should be broken, prior to removing that link the aggregator would send a notice to the content originator. In turn, the originator would be told that they may intervene in the matter and make a substantive defense of the story. If they don’t defend it, the link goes down. This shifts the responsibility of accuracy and fairness – not to mention compliance with the law – on the originator of the content. This also underscores the logical description of a search engine operator merely providing results as electronic file cards, rather than being held responsible for the content of stories that may very well be in the public interest.