Black Friday

Germany considers arbitration courts for ‘right to be forgotten’

Stan Ward

Stan Ward

June 17, 2014

On May 13 the European Court rocked the IT industry and forever changed the landscape of the information search engines. In what has been dubbed “The Right To Be Forgotten” ruling against Google, the court decided that EU citizens could remove” irrelevant or no longer relevant, or inadequate” information from its website. This has resulted in a flood (over 40,000) requests from people to delete information and has prompted a response not only from the search-engine giant but from governments as well.

Google has begun tackling the problem by developing a clever, simplistic form to be used to request that information be taken down from a Uniform Resource Locator (URL). Germany is leading the way by far with 40% of all information takedown requests coming from citizens of that country (a distant second and third is Spain and the UK with a paltry, by comparison, 14% and 13% respectively). Thus it comes as no surprise that the German government appears to be taking the lead in getting ahead of this massive undertaking. They are considering setting up arbitration courts to decide on what information people can force Google and other search-engine providers to remove from results.

The Court in its decision has initiated a firestorm from all sides of the privacy/public information debate. On one hand advocates for personal privacy are heartened. On the other, some fear that the public’s right to know will be endangered. Still others worry about the potential for inadvertent censorship if an outside entity is to decide on what information can be removed.

Dreading the notion of automatic deletion, which would put public information at risk, the Interior Ministry in Berlin would seek to establish “dispute-settlement mechanisms” for consumers who file information takedown requests. “Politicians, prominent figures and other persons who are reported about in public would be able to hide or even delete reports they find unpleasant, “it said in a statement. This, it said, is too important to be arbitrarily left to company algorithms. While search-engine companies would make the initial determination on information removal, people could then turn to the courts or a data-protection authority to challenge the decision. This was the decree by the EU Court and arbitration is a remedy says the German government.

To accommodate the avalanche of requests Google has produced a form. Cleverly though, the form requires a copy of a valid photo ID and a list of every URL you would take down. Having your information removed would require you to copy and paste each URL for the form. This is a daunting task. It should be noted that in the case of a third party or public request for a deletion, the photo ID of the target individual must always be attached. The key part of the form is the complainant’s explanation for the takedown of the URL. Google must weigh the request given the parameters established, i.e. the information is no longer relevant, inadequate or excessive in relation to the purposes for which they were processed.

This puts a tremendous strain on Google and other search-engine companies. What they must decide are issues usually left to a court (read: personal privacy vs. the right to public information). Moreover, the only source for removal is the complainant’s own explanation. There is no demand for verifiable evidence. This is precisely the reason that Germany proffers for the establishment of an arbitration procedure of some sort. An arbitration panel could consider the balancing act between private and public interests. They would weigh-in on the sensitivity of information and the public interest in it.

At the time of writing, the German ministry has not made provisions to create a single mediating authority or put mediators under state supervision. This is good news as it diminishes the spectre of government censorship of information flow. For its part in an effort to be transparent, Google will flag a takedown as something that is missing. It thereby hopes to maintain an aura of transparency in light of the ruling by the EU Court. This is obviously a fluid situation and one that will be worth monitoring in the weeks and months ahead.

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