Opinion: Google right this time – ECJ hopelessly wrong

A top UK consultant and former barrister who's completed stints at LEXIS, Allen & Overy and KPMG Consulting, has come out in full support of Google following the company's European Court of Justice hearing

Imagine this. It is 1963. Three years ago a very embarrassing incident happened in your life – you were photographed coming out of The Ivy with someone else’s wife. There was a Paparazzo (the term had only just been coined) hiding behind a taxi and he grabbed a shot before disappearing down Upper St Martin’s Lane. The next day your photo is all over the papers, with accompanying articles. You are very embarrassed, you get divorced, she gets divorced – you hope it will all go away.

Then – a few years later – whilst it is no longer on everybody’s lips – you realise it will never go away. So in 1963 you go to the courts and sue all the cuttings agencies that store copies of newspapers for research purposes, and get a judgment ordering them to remove all those offending articles from their back issues and archive copies. This has to be done with scissors.

Then you sue anybody who happens to have an old copy of that newspaper hanging around; libraries, clubs, private citizens, your ex-wife, everybody – they too have to remove and destroy the offending material.

Justice is – apparently – served, and you no longer have to live with the shame of knowing that anyone will ever be able to produce, or see, those photos again.
Except that would never have happened, right; because no court in the world could possibly be that stupid, right. You can’t rewrite history to suit your personal or particular purposes, and you should never be able to do so.

Now we jump to the present day, and step forward the Court of Justice of the European Union which has just delivered itself of a judgment against Google that is – effectively – the modern concomitant of that fictitious decision. It is just as stupid, and even worse than that I believe that it will prove to be ultimately unenforceable. Unenforceability of a judgments is a fatal defect for any court seeking to promulgate its own authority, and promote its customer base. Be of no doubt, courts are in the legal service delivery business and need to sell their amenities and gain commercial credibility just as much as – say – Google. In the forum shopping business, you want your court to be the forum of choice.

Well, this counts as an own goal, and shooting oneself in the foot, and any number of other suitable metaphors. Because they will have to climb down and it’s going to be messy, and it’s going to cause such embarrassment for the Court that it will wish that history could be rewritten.

So; what happened? Well, 16 years ago a certain Spanish gentleman named Mario Costeja Gonzalez had a little legal difficulty over the sale of property necessitated by the need to recover money he owed a third party. Well, it was 16 years ago. His view is that the matter had been resolved and should no longer be linked to him. The problem is that when idly Googling himself one day, as we all do, he noticed that references to this old incident keep cropping up in the Web sites retrieved by the search. He does not wish to be permanently linked to these stories, so he sued Google Spain and Google to have the links removed, on the basis of his ‘right to be forgotten’. And yesterday, he won.

#pb# Ironically, an almost perfect exposition of the true state of the law – where Google wins – and with many mature reflections of general principals, including the distinction between the responsibilities of data publishers and web search engines, is to be found in the excellent Opinion of the ECJ Advocate General, Niilo Jääskinen (a Finnish lawyer) of June last year, to be found here.
What a shame that the Court chose to differ from his jurisprudential wisdom in their fatally flawed judgment of 13 May 2014, to be found here. They are wrong; everybody but them knows they are wrong, and Niilo Jääskinen at some point is going to have to learn not to say, “I told you so”.

Obviously neither Mario Gonzalez nor the ECJ has heard of the Streisand Effect. The Streisand Effect is the phenomenon whereby an attempt to hide, remove, or censor a piece of information has the unintended consequence of publicizing the information more widely, usually facilitated by the Internet. It is named after the incident when Barbra Streisand attempted to suppress photographs of her residence in Malibu, California, inadvertently generating massive further publicity.

To see this principal in action; despite the fact that Mario Costeja Gonzalez has actually won his action and obviously wishes to return to the obscurity he so richly deserves; try Googling the words ‘Mario Costeja Gonzalez’. Doh.

The Streisand Effect is closely related – for me and an earlier generation – to the Haldeman Principle; as Bob Haldeman said in one of his conversations with John Dean about Watergate cover-up: “just remember that once the toothpaste is out of the tube, it is going to be very tough to get it back in.”

Some things just can’t be undone, and this is one of them. How on earth is Google (and in due course every other search engine) actually going to remove the specific links that he complains about in their system, and not others, when it has not been removed from the source Web sites? To even contemplate it they would have to employ an army of de-Googlers, frantically and manually removing links for every claimant with a past they would rather forget. This could be hundreds of thousands of people, or more. It is simply not practicable.

Furthermore, and this is even more important, some things just shouldn’t be undone – and history, otherwise known as the truth, is one of them – this should be sacrosanct. Protecting the private rights of miscreants, or people who have just embarrassed themselves, taking precedence over the right to freedom of accurate information for the rest of the human race?

Give me strength…

This article was written by UK consultant, Neil Cameron. http://www.nccg.it/

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