Case 8: Google and the Right to Be Forgotten (Privacy)

Synopsis of the Case:The content of the synopsis should present relevant background facts about the case under examination.

Relevant Factual Information about the Problem or Decision the Organization Faced:State the precise problem or decision the organization faced. The section should include information that addressed the business issue under examination. This section should be no longer than a single paragraph.

Explanation of Relevant Concepts, Theories and Applications Derived from Course Materials:This section should be the bulk of your paper. Analysis of the business problem or decision in light of the course concepts must be presented, as well as the business lesson another organization could learn from this situation. Besides citation to the text, learners must conduct research in the University library related to the top. Citing the textbook only is not enough to demonstrate you understand and can apply the course objectives. Here is where comparative and contrasting positions should be considered and examples and illustrations provided.

Recommendations:Provide logical recommendations to address the business lesson identified above. The recommendations need not to be specific to the organization examined, but should consider how other organizations, if similarly situated, could lessen the impact of the problem or decision identified. Recall, that the organization under examination has already moved pasted this problem so any recommendations made, at this point, are fruitless. The focus of this section should be on what other companies should be aware of to address similar problems or decisions. Citation to the textbook alone is insufficient for analysis in this section. Learners should conduct research in the University's library to support their positions. Depth of scholarship is not demonstrated by providing personal opinions alone, but by using examples, analogies, comparison and illustrations from the academic literature. Not only does this synthesize the material to assist the reader's understanding, it is an effective way to present the academic sources and extend the discussion of your ideas. This section should be a paragraph or two.

Alternative Recommendations:This section isnota continuation of the prior. Provide suggestions for how to avoid the problem or decision the examined organization faced. Analysis here should be may be forward- thinking, predictive or, most likely, preventative in nature but tied to the thesis statement. Again, opinion is insufficient to provide the required academic analysis. Sources, other than the text, must be provided to sustain the statements made. This section should be a paragraph, at most.

Conclusion:End the assignment with a summary of the important points made in the document. No new information may be presented. Writing a conclusion can be done by rewording the opening or reformulation the topic sentences of each paragraph to make a summary for the reader. This section should be a paragraph, at most.

Case 8 Google and the Right to Be Forgottenl Cynthia E. Clark Bentley University In 2009, Mario Cosleja Gonzalez. a self employed attorney living in a small town outside Madrid. Spain. casually \"google: \" hitnself and was startled by what came up on his computer screen. Prominently displayed in the search results was a brief legal notice that had appeared ntore than a decade earlier in a local newspaper, La Vanguardia, which listed property seized and being auctioned by a government agency for nonpaymenls of debts. Among the properties was a home jointly owned by Costeja and his wife. Costeja immediately realized that this information could damage his reputation as an attorney. Equally troubling, the information was no longer factual. He had paid his debt nearly a decade earlier. Abanlex, Costeja's small law firm. depended on the Internet to gain much of its new business, which was often generated by a Google search. Potential clients might choose not to hire him based on the old auction notice, hc reflected. His mind then turned to the possible effects of this kind of information on other people's livelihoods. \"There are people who cannot get a job because of content that is irrelevant,\" he thought?! \"I support freedom of expression and I do not defend censorship. [Hots-ever, I decided] to ght for the right to request the deletion of data that violates the honor, dignity and reputation of individuals."3 The next week, Costeja wrote to La Vanguardia and requested that it remove the article about his debt notice, because it had had been fully resolved at number of years earlier and reference to it now was, therefore, entirely irrelevant.4 In doing so, he was making use of his rights under Spain's strong data protection policies, which recognized the protection and integrity of personal data as a constitutional right under Section 18 of the nation's Data Protection Act.5 In response. the newspaper informed him that it had recently uploaded to the Internet all its past archives, dating back to 1881, to allow them to be searched by the public. It also noted that the auction notice had originally been publicly posted in order to secure as many bidders as possible. The newspaper refused Costeja's request, stating that the information was obtained from public records and had thus been published lawfullyb To be sure, the real problem for Costeja was not that the notice had appeared in La Vanguardia's digital library, but that it had shown up in the results of the most widely used search engine in the world. Google, where potential clients might use it tojudge his character.7 Following this reasoning, Costeja then wrote to Google Spain, the rnt's Spanish affiliate, only to be told that the parent company, Google Inc., was the entity responsible for the development of search results.8 Costeja was taken aback by this development. \"The resources Google has at their disposal aren't like those of any other citizens," he reected.9 Costeja felt he would be at a disadvantage in a lawsuit against an industry giant like Google. In March 2010, after his unsuccessful attempts with the newspaper and Google Spain, Costeja turned to Spain's Data Protection Agency (SDPA), the government agency responsible for enforcing the Data Protection Act. "(ioogle in Spain asked me to address myself to its headquarters in the U.S., but I found it too far and difficult to launch a complaint in the U.S., so I went to the agency in Spain to ask for their assistance. They said I was right. and the case went to court,\" he explainedlo In a legal filing, Costeja requested, rst. that the agency issue an administrative order requiring La Vanguardia either to remove or alter the pages in question (so that his personal data no longer appeared) or to use certain tools made available by search engines in order to shield the data front view. Second, he requested that the agency require that Google Spain or Google Inc. remove or conceal his personal data so that it no longer appeared in the search results and in the links to La Vanguardia. Costeja stated that his debt had been fully resolvedl I With these steps, a small-town Spanish lawyer had drawn one of the world's richest and best-known companies, Google, into a debate over the right to be forgotten. Google, Inc. Googlc Inc. is a technology company that builds products and provides services to organize information. Founded in 1998 and headquartered in Mountain View, CA, Google's mission was to organize the world's information and make it universally accessible and useful. It employed more than 55,000 people and had revenues of $45 billion. The company also had 7'0 offices in tnore than 40 countries. The company's main product, Gougle Search, provided information online in respcmse to a user's search. Google's other well-known products provided additional services. For example. Google Now provided information to users when they needed it, and its Product Listing Ads offered product itnage, price, and merchant information. The company also provided AdWords. an auctionbased advertising program and AdSense, which enabled websites that were part of the Google network to deliver ads. Google Display was a display advertising network; DoubleClick Ad Exchange was a marketplace for the trading of display ad space; and YouTube offered video, interactive, and other ad formats. Search Technology in its core business, Google conducted searches in three stages: crawling and indexing. applying algorithms, and fighting spam. Crawlers, programs [hat browsed the web to create an index of data, looked at web pages and followed links on those pages. They then moved from link to link and brought data about those web pages back to Google's servers. Google would then use this information to create an index of how exactly to retrieve information for its users. Algorithms were the computer processes and formulas that took asers' questions and turned them into answers. At the most basic level. Google's algorithms looked up the user's search tenns in the index to find the most appropriate pages. For atypical query, thousands, if not millions, of web pages might have helpful information. Google's algorithms relied on more than 200 unique signals or \"clues\" that made it possible to guess what an individual was really looking for. These signals included the terms on websites, the freshness of content, the region, and the page rank of the web page.12 Lastly, the company fought spam through a combination of computer algorithms and manual review. Spam sites attempted to game their way to the top of search results by repeating keywords, haying links that passed Google's PageRank process, or putting invisible text on the screen. Google scouted out and removed spam because it could make legitimale websites harder to find. While much oflhis process was automated. Google did maintain teams whose job was to review sites manually Policy on Information Removal Googte's policy on the general removal of information was the following: Upon request, we'll remove personal information from search results if we believe it could make you susceptible to specic harm. such as identity theft or nancial fraud. This includes sensitive government ID numbers like U.S. Social Security numbers, bank account numbers. credit card numbers and images of signatures. We generally don't process removals of national ID numbers from official government websites because in those cases we consider the information to be public. We sometimes refuse requests if we believe someone is attempting to abuse these policies to remove other information from our resultsll Apart from this general policy. Google Inc. also removed content or features from its search results for legal reasons. For example. in the United States. the company would remove content with valid notification from the copyright holder under the Digital Millennium Copyright Act (DMCA). which was adminiStered by the US. Copyright Ofce. The DCMA provided recourse for owners of copyrighted materials who believed that their rights under copyright law had been infringed upon on the lntemet.15 Under the notice and takedown procedure of the law. a copyright owner could notify the service provider, such as Google, requesting that a website or portion of a website be removed or blocked. If, upon receiving proper notication, the service provider promptly did so, it would be exempt from monetary liability. Google regularly received such requests from copyright holders and those that represented them. such as the Walt Disney Company and the Recording Industry Association of America. Google produced and made public a list of the domain portions of URLs that had been the subject of a request for removal. and noted which ones had been removed. As of July 2015, it had removed more than 600.000 URLs out of more than 2.4 million requests. I 6 Likewise. content on local versions of Google was also removed when required by national laws. For example, content that gloried the Nazi party was illegal in Germany. and content that insulted religion was illegal in lndia.17 The respective govemments, via a court order or a routine request as described above typically made these requests. Google reviewed these requests to determine if any content should be removed because it violated a specic country's law. When Google removed content from search results for legal reasons, it first displayed a notication that the content had been removed and then reported the removal to www.chillingeffects.org, a website established by the Electronic Frontier Foundation and several law schools. The Chilling Effects database collected and analyzed legal complaints and requests for removal of a broad set of online materials. It was designed to help lntemet users know their rights and understand the law. Researchers could use the data to study the prevalence of legal threats and the source of content removals. This database also allowed the public to search for specic takedown notications. 18 Google removed content quickly. Its average processing time across all copyright infringement removal requests submitted via its website was approximately six hours. Different factors influenced the processing time. including the method of delivery. language, and completeness of the information submitted. The Right to Be Forgotten The right to be forgotten can be understood as peoples' light to request that information be removed from the Internet or other repositories because it violated their privacy or was no longer relevant. This right assumed greater prominence in the digital era, when people began finding it increasingly difficult to escape information that had accumulated over many years, resulting in expressions such as \"the net never forgets,\" \"everything is in the cloud, reputation bankruptcy," and \"online repulalion."l9 According to Jeffrey Rosen, professor of law at George Washington University, the intellectual roots of the right to be forgotten could be found in French law, which recognized le droit a I'oublior the \"light of oblivion"a right that allowed a convicted criminal who had served his time and been rehabilitated to object to the publication of the facts of his conviction and incarcerationlo Although the right to be forgotten was rooted u: in expunging criminal records. the rise of the Internet had given the concept a new. more complex meaning. Search engines enabled users to access information on just about any topic with considerable ease. The ease with which information could be shared, stored, and retrieved through online search raised issues of both privacy and freedom of expression. On the one hand, when opening a bank account, joining a social networking website or booking a ight online, a consumer would voluntarily disclose vital personal information such as name, address, and credit card numbers. Consumers were often unsure of what happened to their data and were concerned that it might fall into the wrong handsthat is, that their privacy would be violated. On the other hand, by facilitating the retrieval of information, search engines enhanced individuals' freedom to receive and impart information. Any interference with search engine activities could, therefore, pose a threat to the effective enjoyment of these rights.21 As Van Alsenoy, a researcher at the Interdisciplinary Center for Law and Information Communication Technology, argued. "In a world where search engines are used as the main tool to nd relevant content online, any govemmental interference in the provisioning of these services presents a substantial risk that requires close scrutiny."22 Europe Since the [9905, both die European Union and its member states (such as Spain} had enacted laws that addressed the right to privacy and, by extension. the right to be forgotten. A fundamental right of individuals to protect their data was introduced in the EU's original data protection law, passed in l995. Specically, the European Data Protection Directive 95i46 dened the appmpriate scope of national laws relating to personal data and the processing of those data. According to Article 3(1). Directive 95:46 applied \"to the processing of personal data wholly or partly by automatic means. and to the processing otherwise than by automatic means of personal data which fon'n part of a filing system or an: intended to form part of a ling system.\"23 Article 2(b) of the EU Data Protection Directive 95l46 dened the processing of personal data as: any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction. Individual countries within the European Union also enacted their own laws, which were sometimes stronger than those of die EU. For example, in Spain, the protection of data was a constitutional right. The Spanish Constitution recognized the right to personal privacy, secrecy of communications. and the protection of personal data. These rights were protected through the Data Protection Act (the "'Act\"). passed in 1999. which incorporated the 1995 European Directive on data protection, and was enforced by the Spanish Data Protection Agency (SDPA). Created in 1993, this agency was relatively inactive until the passing of the Act. which gave it more powers and a mandate to enforce privacy rules in a wide range of situations.24 The Spanish agency exercised its powers broadly. For example, in 2013, it fined telecom firm Telefonica SA 0,000 for twice listing an individual's phone number in local phone books without the individual's prior consent. In 2008. the agency fined a marketing company 00 for using \"recommend this to a friend" icons on websites. saying that senders of reconnnendation c-mails had to first request the recipient's permission. The agency had also successfully required anyone using security cameras to clearly mark their presence with a recognizable icon. Supporters of this move have highlighted the importance of transparency in protecting one's privacy.25 Over time, however. differences in the wayr that each EU country interpreted privacy rights [ed to an uneven level of protection for personal data. depending on where an individual lived or bought goods and services. This led the European high court to take a second look, in 2013, at the original law.26 A European Commission memo at that time noted that the right \"is about empowering individuals. not about erasing past events or restricting freedom of the press."27 The changes were intended to give citizens more control over their personal data. making it easier to access and improve the quality of information they received about what happened to their data once the).r decided to share it. An unanswered question. however. was the latitude given to national courts and regulators across Europe to set the parameters by which these requests could be made.28 The United States U.S. courts had taken a very different approach to privacy and to the right to be forgotten. A few U.S. laws recognized the right to be forgotten: the Fair Credit Reporting Act of 1970. for example. gave individuals the right to delete certain negative information about their credit such as late payments. tart liens. or judgmentsseven years from the date of the delinquency. But, for the most part, fundamental differences in legal philosophy made this right less likely to become widely supported in the United States. In an article published in the Atlantic in May 2014, Matt Ford suggested that in the U.S. context. one person's right to be forgotten logically imposed a responsibility to foget upon someone else. a notion that was alien to American law. The First Amendment to the Constitution barred the government from interfering with free speech. Law professor Rosen argued that the First Amendment would make a right to be forgotten virtually impossible, not only to create but to enforce. For example, the U.S. Supreme Court ruled in 1989 that penalizing a newspaper for publishing truthful. lawfully obtained information from the public record was unconstitutional29 The Lawsuit and Court Decision The main focus of Costeja's complaint before the Spanish Data Protection Agency {SDPA) was his request that La Vanguardia remove the debt notice from its archives. In doing so, he was claiming his constitutional right to protect the integrity of his personal data. Costeja's request had two parts: that (1} La Vanguardia be required either to remove or alter the pages in question or to use certain tools made available by search engines in order to protect the data and (2) that Google Spain or Google Inc. be required to remove or conceal the personal data relating to him so that the data no longer appeared in search results. In July 2010, two months after Costeja's original request, the SDPA ordered Google Spain and Googie Inc. to take \"all reasonable steps to remove the disputed personal data from its index and preclude further access.\" upholding that part of the complaint30 However. the SDPA rejected Costeja's complaint as it related to La Vanguardia, because it considered that the publication by it of the information in question was legally justified.\" A year later. Google led an appeal against the decision by the SDPA before the Audiencia Nacional in Madrid, Spain's highest national court. In March 2012. this court referred the case to the European Court of Justice. the EU's high court. for a preliminary ruling.32 In their briefs. Google Spain and Google lnc.'s argument hinged on the meaning of \"personal data\" and \"crawling.\" Crawling, as noted above, was the use of software programs to nd multiple websites that responded to requests for information online.33 These programs were congured to look for information on the Internet, according to a set of criteria that told them where to go and when.34 Once the relevant web pages had been copied and collected, their content was analyzed and indexed.35 Cioogle compared its search engine index to an index at the back of a textbook, in that it included information about words and their locationsb Specically, Google argued before the European Court of Justice that because it crawled and indexed websites \"indiscriminately\" (that is. without a deliberate intent to process personal data as such}, no processing of personal data within the meaning of Article 2 lb) of the EU Data Protection Directive 95a'46 actually took place. This absence of intent, the company argued, clearly distinguished Google's activities as a search engine provider from the processing of personal data as interpreted by the Conn. Google's other main argument was that the publisher of the information should be the sole controller of data. not the search engine. After all, its attorneys argued. Google's intervention was purely accessory in nature; it was merely making information published by others more readily accessible. If a publisher. for whatever reason, decided to remove certain information from its website. this information would (eventually) be removed from Google's index and would no longer appear in its search results. As a result, Google's counsel argued, the role of a search engine should be thought of as an \"inlennediary.\" In May 2014, the European Court of Justice ruled against Google. The court found the Internet search provider was responsible for the processing of personal data that appeared on web pages published by third parties. It further required Google to remove links returned in search results based on an ind ividual's name when those results were deemed to be \"inadequate, irrelevant or no longer relevant, or excessive." At the heart of the court's logic was the process that Google used to produce its search results. The ofcial ruling explained the court's rationale: The Court points out in this context that processing of personal data carried out by such an operator enables any Internet user, when he makes a search on the basis of an individual's name, to obtain, through the list of results, a structured overview of the information relating to that individual on the internet. The Court observes, furthermore, that this information potentially concerns a vast number of aspects of his private life and that, without the search engine, the information could not have been interconnected or could have been only with great difficulty.3'? In essence, the Court ruled that an activity, \"whether or not by automatic means\" could be considered to be the \"processing of personal data" within the meaning of Article 2th), even if no intention to process such data existed.38 The court's ruling applied to any search engine operators that had a branch or a subsidiary in any of the 28 member states of the EU.39 Costeja's lawyer, Joaquin Muoz, was pleased with the rating. \"When you search for something in Google, they don't scour the entire Internet for you and then give you a result. They've stored links, organized them, anti they show them based on a criteria they've decided upon."40 As for Costeja. he expressed satisfaction with the result of his four-year legal crusade. Speaking ofthe court's decision, he said, \"I think this is the correct move. You have to provide a path for communication between the user and the search engine. Now that communication can take place."4l Google's Application of the Ruling For its part, Googlealthough disappointed with the rulingset about complying with it. Soon after the court decision, it removed Costeja's disputed information from its search results. But, the company also took more general action. The Court's decision recognized Google as a data controller, or the operator of the search engine and the party responsible for its data. As such. the court said, Google was required to police its links and put into place a mechanism to address individual concerns. Accordingly. shortly after the ruling, was announced, Google set up an online form for users (from the European Union only) to request the right to be forgotten. rThe company website stated that each request would be evaluated individually and that Google would attempt to \"balance the privacy rights of the individual with the public's interest to know and the right to distribute information,\"42 Once an individual had filled out the form, he or she received a conrmation. Each request was assessed on a case-by-case basis. Occasionally, Google would ask for more information from the individual. Once Googlc had made its decision. it notied the individual by email, providing a briefexplanation if the decision was against removal. If so, the individual could request that a local data protection authority review Google's decision. In evaluating a request, Google looked at whether the results included outdated or inaccurate information about the individual, It also weighed whether or not the information was of public interest. For example, Google generally retained the information if it related to financial scams, professional malpractice, criminal convictions, or a government ofcial's public conduct.43 At the same time, Google invited eight independent experts to form an advisory coancil expressly to \"advise it on performing the balancing act between an individual's right to privacy and the public's interest in access to information.\"44 The committee included three professors (two of law and one of ethics}, a newspaper editorial director, a former government ofcial, and three privacy and freedom of speech experts ( including one from the United Nations). Google's CEO and chief legal ofcer served as conveners. The conuniltee's job was to provide recommendations to Google on how to best implement the EU court's ruling. The majority recommendation of the advisory council. published on February 6, 2015. was that the right to be forgotten ruling should apply only within the 28 countries in the European Union.45 As a practiCal matter, this meant that Google was only required to apply removals to European domains, such as Googlefr or Googlecouk, but not Googlecom, even when accessed in Europe. Although over 95% of all queries originating in Europe used European domains, users could still access information that had been removed via the Googlecom site. The report also explained that once the information was removed. it was still available at the source site (e.g., the newspaper article about Costeja in La Vanguardia). Removal meant merely that its accessibility to the general public was reduced because searches for that information would not return a link to the source site. A person could still nd the information, because only the link to the information had been removed, not the information itself. The advisory council also recommended a set of criteria Google should use in assessing requests by individuals to \"delist\" their information (that is, to remove certain links in search results based on queries for that individual's name). How should the operator of the search engine best balance the privacy and data protection rights of the subject with the interest of the general public in having access to the information? The authors of the report felt that whether the data subject experienced harm from such accessibility to the information was relevant to this balancing test. Following this reasoning, they identied four primary criteria for evaluating delisling requests: First, what was the data subject's role in public life? Did the individuals have a clear role in public life (CEOs, politicians, sports stars)? If so. this would weigh against delisting. Second, What type of information was involved? Information that would normally be considered private (such as nancial information, details of a person's sex life, or identication numbers) would weigh toward delisting. Information that would normally be considered to be in the public interest (such as data relevant to political discourse, citizen engagement, or governance) would normally weigh against delistinO. Third, what was the source of the information? Here, the report suggested that journalistic writing or government publications would normally not be delisted. Finally, the report considered the effect of time, given that as circumstances change, the relevance of information might fade. Thus. the passage of time might favor delisting. The advisory council also considered procedures and recommended that Google adopt an easily accessible and easy-to-understand form for data subjects to use in submitting their requests. The recommendations of the advisory council were not unanimous. Jimmy Wales, the cofounder of Wikipedia and one of the eight group members, appended a dissenting COIl'Ct to the report. \"I completely oppose the legal situation in which a commerciai company is forced to become the judge of our most fundamental rights of expression and privacy, without allowing any appropriate procedure for appeal by publishers whose work in being suppressed.\" Mr. Wales wrote. \"'T he recommendations to Google contained in this repou are deeply flawed due to the law itself being deeply awed."46