Implementing the Right to Be Forgotten

It isn’t easy to implement the European Court of Justice’s right to be forgotten decision.  According to one press report, Google has received 70,000 requests for link removal through its online form since the program went into effect last month.  Another report says requests to remove links are arriving at an estimated rate of one every seven seconds.  As predicted here after the court’s decision in May, the results are not pretty. But the fault is not in implementation but in the flawed underlying decision that restricts free expression and puts substantial legal discretion in the hands of search engines.

Let’s recall how extreme the decision was.  It said that under European law privacy trumps free expression in the context of Internet search.  The right to respect for private life and the right to the protection of personal data “override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in finding that information upon a search relating to the data subject’s name.”  There can be an exception to this general rule: “…for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of inclusion in the list of results, access to the information in question.”

The court’s standard for determining whether privacy interests are implicated was whether the information was “inadequate, irrelevant or no longer relevant, or excessive…”  The court added that triggering privacy interests did not require a finding that “the inclusion of the information in question in that list causes prejudice to the data subject.” So what would trigger privacy interests? To say the court’s guidance is extraordinarily vague is an understatement.

Given the court’s reference to search engines in making access to information “appreciably easier” and playing “a decisive role” in the dissemination of information on the Internet, it is hard to avoid the conclusion that the intent of the court was to limit the effective dissemination of information on the Internet. But it did so by granting discretion to search engines to make some delicate value judgments and without specific guidance on how to make those judgments.

So how’s the implementation going? Certainly Google hasn’t done everything right. Taking down some links and then apparently restoring them certainly seems to be a misstep. But on the whole they’ve done a pretty balanced job.  They are requiring the filing of a request, including a statement on why release of the information would not be in the public interest.   There is no indication that they are granting all requests or turning all requests down.  They notify the publisher of the links removed from search results, but they do not reveal the identity of the person requesting the take down, since this would reveal the information that the data subject was trying to conceal.  They are following the law by limiting take down’s to EU citizens and to EU search results rather than extend the EU regime to the world.

Some commenters suggest that search engines are granting too many deletion requests and should instead routinely decline them all – which would force the data subjects to go data protection authorities or the courts to get links removed. [Read more...]

A Dark Day for Free Expression on the Internet

The European Court of Justice’s recent decision granting EU citizens a right to be forgotten by search engines is a major blow to free expression on the Internet.  Reaction from media outlets like the New York Times and the Financial Times has been harshly critical and rightly so.   The key thing for Internet users and for public policymakers in Europe is to understand how this ruling might reduce the amount of accurate information available on the Internet.

The decision did not spring from any impulse to censorship, but from an honest attempt to vindicate the fundamental right to privacy in a digital age.  That’s why any comparison to authoritarian government censorship of the Internet is just overblown rhetoric. But unless it is modified or re-interpreted through further jurisprudence or legislation, this decision might well be the turning point where free expression on the Internet begins to recede from its current high water mark.

What’s the threat to free expression?  The court attempts to balance the interest of search engine users in access to information and the privacy interests of individuals who are the subject of lawfully published material available on the Internet.  In making that balance, however, the court says:  “the data subject’s rights… override, as a general rule, that interest of internet users…”  That’s the problem in a nutshell: under the decision privacy trumps free expression on the Internet.

The court envisages a process in which a person who thinks that search results are an intrusion into his private life presents a complaint to the search engine stating that one or more links in the search results refer to data that appear to be “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed.”  The search engine then must “duly examine” this complaint and if it finds that the links meet this standard of “inadequacy, irrelevance or excessiveness” it must delete these links from its search result.  This must be done even if the data are accurate and their initial publication lawful.  An exception from this general requirement to delete links allows the search engine to retain the links in search results when “there are particular reasons, such as the role played by the data subject in public life, justifying a preponderant interest of the public in having access to the information when such a search is made.”

This process is heavily weighted in favor of a complainant, and allows free expression to function only as a defense against a finding of a privacy violation.

The particular case before the court illustrates the process. A Spanish man incurred certain debts many years ago, which was reported accurately in a newspaper at the time.  He has since cleared up the debts.  But a search of his name today returns the original story in a prominent place, thereby recirculating true but outdated information about him.  He asked the search engine to remove these links.  Under the new regime, the search engine would be required to go through the above process using the new standard and if it finds that the information is inadequate, irrelevant or excessive it must consider whether the role played by the physician in public life gives the public a preponderant interest in access to the information.  If not, it must delete the links.

Search engines must assess what this ruling means in terms of their internal policies and practices and seek to bring them into compliance with the ruling.  The cost and burden to these companies are important and might make operating an effective search engine in Europe a nearly impossible task.

But the real impact of the ruling is that is it likely to reduce the amount of accurate information available on the Internet.

Even a preliminary review of the decision reveals substantial challenges:

What do the new standards mean? Are there really three different bases for deleting search results – irrelevance, inadequacy or excessiveness? A standard of excessiveness is particularly troubling and could potentially require search engines to assess whether a publisher gathered too much accurate information about a person.

What role do other interested parties have in a complaint?  The original publisher, for instance, might not want links to his stories suppressed in search results.  Other people and organizations are typically mentioned in published stories.  What if they want links to the stories available and think their rights are violated by suppression?  Are the search engines supposed to convene a process to allow all interested parties to present evidence as if they were a court?

How broadly does the ruling apply?  It covers search engines, but many companies are in the business of aggregating lawfully acquired accurate information from a variety of public and private sources and making it available to the public.  The same story that the search engine would have to delete is also available in thousands of commercially available databases throughout the world.  Are those providers of information services subject to deletion demands from EU data subjects even if they are not based in the EU?

These are just preliminary questions that must be clarified going forward.  But a new day of privacy-based deletion requests is dawning.  Unless EU policymakers intervene, the new day is likely to be a dark one for free expression.


Mark MacCarthy, Vice President, Public Policy at SIIA, directs SIIA’s public policy initiatives in the areas of intellectual property enforcement, information privacy, cybersecurity, cloud computing and the promotion of educational technology.

Intellectual Property Roundup

IP News

Google to AU Govt: Piracy is Down to Pricing, Availability (CNET)
In a submission to the Australian government, Google said that harsh regulation is not the solution to piracy, which it says is instead the result of poor “availability and pricing.”

Intellectual Property Rights Case Load Overwhelming Fledgling Court (The Moscow Times)
Overworked and understaffed, Russia’s fledgling Intellectual Property Rights Court is watching nervously as its case load continues to climb. Since it was founded six months ago, more than 2,000 cases have been filed with the court.

Software Piracy Crackdown Helps State Businesses (Shreveport Times)
Louisiana’s crackdown on a foreign manufacturer of charcoal and gas grills that was using pirated software to make products at reduced prices is expected to have national impact and improve competition for local manufacturers.

Getty Images Makes Much of its Photo Portfolio Free to Use (CNET)
Getty Images has launched an Embed tool that allows people to use more than 35 million of the service’s portfolio of images for free. Getty says its images have been widely pirated on the web for years, and the purpose of the program is to find new revenue streams for the photographers and the company.

U.S. Court Orders Seizure of DVD-Ripping Software Domains and Funds (Torrent Freak)
A New York federal court has granted the seizure of several domain names, bank funds and social media accounts belonging to DVD-ripping software company DVDFab.

Congress Gets Out Club for Patent ‘Trolls’ (The Hill)
Lawmakers from both sides of the aisle, as well as a wide swath of different industries have aligned behind the push for a crackdown on so-called patent trolls.

SIIA Announces New Intellectual Property Protection Division

SIIA is significantly expanding its enforcement efforts, and will now target a broad range of intellectual property violations, on behalf of both software and content publishers. The new program, now called the Intellectual Property Protection Division or IPP Division, will continue its anti-piracy efforts but will now investigate and resolve many more types of nefarious activities that can adversely affect a participating company’s brand, intellectual property or reputation, such as: counterfeiting, fraud, unauthorized access, fraudulent use of domain names, and more.

SIIA will also assist participating publishers with the protection of their intellectual property. These protection services will include such things as assisting publishers with registering their valuable IP with the U.S. Copyright Office and U.S. Patent and Trademark Office, registering their brands with the new domain name Trademark Clearinghouse, and more. The IPP Division will also place a renewed emphasis on content piracy and offer a range of specialized services that address the varying needs of participating content publishers.

More information about the new SIIA IPP Division is available here.

Important Message About Protecting Your Brands

Late last year, ICANN began approving the first new gTLDs. Like all new domain names that are or will be approved by ICANN, these new gTLDs will not go live until after brand owners are given a brief window to register addresses using their own brands before anyone else can. For more information about this process see this SIIA alert and FAQs. SIIA has created a new domain name alert system for those companies that are interested in knowing what new domain names are approved, when they will go live and how to protect themselves. Those who sign up for the alert will receive a weekly email from SIIA notifying them what new gTLDs have been approved by ICANN, and other relevant information. If you are interested in receiving these alerts, please email me atkeithk@siia.net so that we can add your name to the list of alert recipients.


Keith Kupferschmid is General Counsel and SVP, Intellectual Property Policy & Enforcement at SIIA. Follow Keith on Twitter at @keithkup and sign up for the Intellectual Property Roundup weekly newsletter here.

7 Engagement Ideas Including Thank-you Notes and the Best Icebreaker

1. Break—no, smash—that ice. At a leadership dinner at the recent IIS 2014 Conference in New York, I saw one of the best icebreakers: People were asked to talk about their first job, one that isn’t on their resume. Many of these folks are CEOs and VPs. But what we heard were stories of clam-digging, newspaper-delivering, shop-keeping, furniture-moving and other tales of wow, really? It loosened everyone up, neatly evened the playing field, and led to good conversation the rest of the evening. I approached someone from The Economist who worked on the boardwalk in Seaside, N.J., near where I grew up. [Read more...]

Intellectual Property Roundup

Google Set to Face Intellectual Ventures in Landmark Patent Trial (Reuters)
Intellectual Ventures is going to trial over three patents it claims Google’s Motorola Mobility unit infringed, in the first trial it has undertaken since it was founded.

U.S. Justices Referee “Raging Bull” Copyright Fight (Reuters)
U.S. Supreme Court justices heard arguments over a copyright dispute concerning an early screenplay for what became the iconic boxing movie “Raging Bull.” The legal question is whether MGM can argue in its defense that Petrella, daughter of deceased screenwriter Frank Petrella, waited too long to assert her claim.

Cable Industry Sues Apple-Backed Patent Troll Over “Illegal Conspiracy” (GigaOM)
The patent wars have taken a new twist as five cable companies have filed a lawsuit against so-called patent troll Rockstar, claiming the consortium owned by Google competitors is engaging in an illegal conspiracy to move standards-essential patents through a series of shell companies in order to avoid obligations requiring Rockstar license the patents on fair and reasonable terms.

SAP Rejected By Supreme Court Over $391 Million Loss (Bloomberg)
The U.S. Supreme Court let stand a $391 million judgment against computer software maker SAP in a patent-infringement dispute over database management tools.

China Seized 60,000 Piracy Suspects Last Year (The Washington Post)
China says police seized almost 60,000 suspects involved in intellectual property infringement cases with a total estimated value of $28 billion in 2013.

Can Former “Pirates” Fix a Broken Movie Market? (Ars Technica)
Ecuadorean citizens have gotten creative and experimented with licensing models that have street vendors, local rights holders, and the government working together to address the problems of affordable, legal access to media.


Keith Kupferschmid is General Counsel and SVP, Intellectual Property Policy & Enforcement at SIIA. Follow Keith on Twitter at @keithkup and sign up for the Intellectual Property Roundup weekly newsletter here.

Public Sector Innovation Roundup

IT Acquisition Reform Update:
Last week, I reported that there was expected to be some progress on IT acquisition reform when the Senate returned from its recess, with at least three pending amendments seeking to address the issue. This week, it looks like that has been put on hold as the Senate now looks to consider a “compromise” defense authorization bill that was negotiated between the House and Senate which they will try to move through the House this week and the Senate next week, without amendment. The base text, according to the House Armed Services Committee Summary does not include any language addressing IT acquisition reform. FITARA or parts of it could potentially move as stand-alone legislation next year, according to Rep. Gerry Connolly (D-VA). FCW has a story with the latest.

Ryan, Murray Reach Budget Framework Agreement:
Senator Patty Murray (D-WA) and Rep. Paul Ryan (R-WI) unveiled a bipartisan budget agreement on Tuesday that would roll back $63 billion of the sequester cuts (split between defense and non-defense programs), reduce the deficit by approximately $23 billion and fund the government for the next two fiscal years at slightly over $1 trillion each year. The bill, if approved by the House and Senate, would eliminate the possibility of a government shutdown when the current continuing resolution expires in January and provides a level of funding certainty that hasn’t been seen in Washington for a number of years. The deal does not raise the debt ceiling, which Congress will have to address by early February. Politico has a report.

Interior Shifts CIO Responsibilities, Consolidates IT:
Three years ago, the Department of Interior, began the transformation of their CIO operations, including a structural change establishing a single Chief Information Officer for the entire Department, while retitling bureau level CIOs as Assistant Directors for Information Resources (ADIRs). Since that process began, Interior has consolidated 55 data centers, combined 14 email systems into one and moved a host of other applications and systems to the cloud.FedNewsRadio reports on the progress Interior has made.

White House Unveils New Open Government Framework:
On December 5th the White House released the second and latest U.S. Open Government National Action Plan. The new policy aims to build upon prior efforts to create a more open, efficient and effective government, leveraging technology to achieve this goal. Among the highlights of the latest policy is a plan to consolidate FOIA requests across government and making government spending data available in machine-readable formats, leveraging USAspending.gov. The FOIA plans are interesting in that they will only be consolidated at the front end, and the requests themselves will still be routed to the relevant agency for review and approval. FCW covers it here.

DOE to Move 6,000 More to Google Apps:
The Department of Energy announced last week that they plan to move 6,000 more employees to Google Apps for Government cloud email and collaboration. The move comes after 5,000 DOE employees at the Idaho National Lab moved to Google last year with the expectation of consolidation, efficiency and cost-reduction. Unisys has the contract for the transition, which includes integration of the department’s mobile users. GCN has more.


Michael Hettinger is VP for the Public Sector Innovation Group (PSIG) at SIIA. Follow his PSIG tweets at @SIIAPSIG. Sign up for the Public Sector Innovation Roundup email newsletter for weekly updates.

Intellectual Property Roundup

Enforcement News

U.S. Supreme Court To Decide Whether Software Can Be Patented (Reuters)
The U.S. Supreme Court agreed to decide a question of key importance to the software industry by considering what kind of computer-related processes are eligible for patent protection.

U.S. Court Questions Google Defense Against Oracle Over Android (Reuters)
The U.S. Court of Appeals for the Federal Circuit in Washington closely questioned Google’s claim that Oracle does not enjoy copyright protection over certain parts of the Java programming language.

Once Piracy Havens, China’s Internet Video Websites Turn Police (Reuters)
China’s biggest Internet video company, Youku Tudou, once a haven for illicit content, now employs a dozen piracy investigators, highlighting how China’s online video industry is courting higher advertising revenues and better relations with foreign media firms by cracking down on illegal content.

European Commission Launches Consultation On EU Copyright Modernization(Intellectual Property Watch)
The European Commission announced the launch of a public consultation on modernization of European Union copyright rules as part of a larger process to review and update the region’s copyright laws.

Michelle Lee Named USPTO Deputy Director (Intellectual Property Watch)
Michelle Lee has been named the new deputy director of the U.S. Patent & Trademark Office, and in the absence of a director at USPTO, she will also serve as acting director. Lee is currently director of the USPTO Silicon Valley satellite office.

Policy News

House Bill Raises Bar For Suits Over Patents (The New York Times)
The House overwhelmingly passed a patent reform bill, known as the Innovation Act, that would force companies bringing patent-infringement lawsuits to disclose information about who ultimately owns a patent and would benefit from a settlement, and to specify how a patent is being violated.

Russia Amends Anti-Piracy Law To Specify Procedure For Blocking Illegal Content(The Hollywood Reporter)
New amendments to the Russian anti-piracy law clearly stipulate a procedure for blocking websites carrying illegitimate content, making hosting providers and website owners equally responsible for restricting access to disputed materials.


Keith Kupferschmid is General Counsel and SVP, Intellectual Property Policy & Enforcement at SIIA. Follow Keith on Twitter at @keithkup and sign up for the Intellectual Property Roundup weekly newsletter here.

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