Monday, June 30, 2014

This is what free speech looks like to Google

Germans start challenging the internet search giant after a landmark EU ruling on internet privacy.

By Jason Overdorf
(GlobalPost, June 2014)

BERLIN, Germany — You may think anyone whose own company's search engine autocompletes his name with the phrases “is evil,” “is a douche” and “is creepy” would have some sympathy for lesser mortals who have somehow been damned to internet hell.

But in the case of Google chief executive Eric Schmidt, you'd be wrong.

Last month, the European Union issued a landmark ruling that redefined internet privacy by establishing a “right to be forgotten” enabling European citizens to demand Google and other search engines remove sensitive personal information from the results of searches for their names.

Now a looming battle is shaping up over which requests will be honored, and Schmidt’s company is sticking to its guns in a series of precedent-testing cases in Germany that are highlighting how radically the web is redefining the borders between privacy and freedom of speech.

Cologne-based lawyer Christian Solmecke's telephone has been ringing off the hook since the EU ruling.

“So far, about 100 people have contacted me so that we can help them to delete links to information about themselves,” he says.

Google has been even busier. Within a week of the ruling, it received some 41,000 requests for links to be severed, the company says. Nearly a third were related to frauds or scams, a fifth concerned serious crimes, and 12 percent were connected to child pornography arrests.

Google has always maintained that its search results are essentially the same as newspaper reports, meaning the words generated by its algorithms constitute protected speech.

However, the issue isn't as simple as its statistics suggest, Solmecke says. The EU ruling defines Google not as a printing press but a “profile building machine,” the lawyer explains.

That means the search engine's tabulation of information available on the web doesn’t necessarily enjoy the same legal protections as the information itself. Even if a newspaper article that mentions your name can’t be removed from the internet, you may be able to prevent Google from directing web users there when they type in your name.

The judgment also shifts the burden of proof.

Previously, individuals had to show information to be false or slanderous in order to force Google to remove it. Now Google must effectively prove not only that the information is true but also that it's important to the public interest.

That may make the defense of free speech an even stickier problem.

While individuals seeking to remove information will probably have strong personal motives to edit their pasts, Google's reasons for defending the public's right to know are more abstract. That may create an imbalance: The company’s motives for defending free speech are mainly financial, and it will cost the company money and effort to defend itself against each individual case, making that less likely.

That raises interesting debates in an age when Facebook posts can acquire lives of their own even after their authors delete them.

One of Solmecke's clients is a 23-year-old man currently applying for jobs. When a prospective employer Googles his name, virtually the first result that pops up is a 10-year-old newspaper article about a reading competition that he won — as part of a special-education program he doesn’t want mentioned.

In another case, a leading business executive who was convicted of data theft two decades ago argues that the information, although accurate, should no longer define him to colleagues, employers and casual acquaintances when they search his name.

Bettina Wulff, the wife of former German President Christian Wulff, has already won a cease and desist order against Google over its autocomplete function, which suggested terms such as “red light district” and “escort” when users typed in her name because of an unsubstantiated rumor about her past.

Her success shows it was possible to stop Google and other websites from printing false or slanderous information even before the recent EU ruling. But the hurdles were practically insurmountable.

Google required a court judgment from the countries where the source information was hosted, which could mean legal battles in Belize or the Cayman Islands.

Challenges could also be counterproductive. More than 80 percent of Germans learned the prostitution rumors about Wulff from her campaign to squash them, a recent poll found.

The newspaper report about the special education prize presents trickier problems.

It's not slanderous. It's not even incorrect. Prior to the EU’s ruling, there would have been no grounds for blocking it.

But the challenger believes it's discouraging prospective employers — and that it's difficult to make the case that keeping the article associated with his name is somehow in the public interest.

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“Everyone who Googles me thinks I'm a disabled person and that's not true,” his lawyer quoted him as saying.

The newspaper reports about the businessman convicted of data theft are also not slanderous. But it's more difficult to ascertain whether it's in the public interest for his conviction to remain associated with his name.

“There's always a stigma that I've done something wrong 20 years ago,” Solmecke quoted him as saying.

Now that he may be empowered to edit out that mistake, more legal problems may arise in the future: no one, including Google, currently has as strong a motive to fight for the public's right to know about it.