Google around the world: privacy, e-commerce and the “right to be forgotten”

A panel of people appointed by Google is meeting in Madrid today to debate the balance between privacy and freedom of information. This is the first of seven meetings set to take place across various European capitals, instigated by the “internet giant” after the controversial “right to be forgotten” ruling of the European Court of Justice (“ECJ”) in May this year.

Google is certainly no stranger to the international legal spotlight and has been grabbing headlines over the past few months due to its involvement in a number of novel judicial decisions. These decisions highlight some of the legal challenges faced by search engine providers, and include the “right to be forgotten” ruling and a recent decision of the British Colombia Supreme Court ordering Google to block access to a website allegedly selling goods violating the trade secrets of the plaintiffs.

Decisions like these raise some novel questions. What kind of role does Google have to play in enabling users access to certain content on the internet? Is Google merely an innocent bystander that shouldn’t be required to protect other people’s intellectual property rights, or should it play an enforcement role in the case of known infringements? We take a closer look at these decisions and offer some food for thought below.

The right to be forgotten decision

In the recent “right to be forgotten” decision (Google Spain SL & Google Inc. v Mario Costeja Gonzalez CJEU Case C-131/12 13 May 2014) the ECJ held that certain inadequate or irrelevant personal data should be “de-indexed” from Google’s search results. The case was originally brought in Spain by Mario Costeja Gonzalez, who was seeking an order that links to a Spanish newspaper article published in 1998 about his financial difficulties be removed from Google’s search results. Gonzalez argued that the right to privacy contained in the European Data Protection Directive (“Directive”) was breached by any company carrying out “data processing” of personal data that was “outdated, wrong or irrelevant”.

At issue was the construction of the Directive. As the ECJ pointed out, this was a challenging task and it required interpretation of this Directive in the context of technologies which appeared after its original publication. In particular, the question was whether the information gathering and collating process undertaken when users conduct a Google search was incompatible with the privacy rights granted under this Directive. These included the individual’s right to object to or to request the rectification, erasure or blocking or data which was incomplete or inaccurate under Articles 12 and 14 of the Directive.

The ECJ found that the process instigated when a Google search was conducted did breach individual rights under the Directive. Importantly, it also found that the scope of these rights extended to a situation where the information was originally published by a third party, and that individuals had the right to approach search engines to prevent indexing of this information. On this basis the ECJ ordered that Google remove links to “outdated, wrong or irrelevant” content from its European results. Searches made from Google’s European services will now be delivered with the caveat “some results may have been removed under data protection law in Europe”.

In arriving at its decision the ECJ made some interesting comments about Google’s role in the online dissemination of information. It emphasised that by “automatically, constantly and systematically” exploring the internet and organising that information in its results, Google was effectively providing a “structured overview” of individual people. It did not matter that the data was not altered by the search engine – it was still considered a “controller” for the purposes of the Directive and played a “decisive role” in the dissemination of personal information.

Equustek Solutions Inc v Morgan Jack and others

In Equustek Solutions Inc v Morgan Jack and others (2014 BCSC 1063)(“Equustek”), the British Columbia Supreme Court issued an injunction requiring Google to de-index certain websites from its search results. Prior to initiating legal proceedings, the plaintiff had previously requested Google’s help in blocking specific URLs. However, the content continued to appear through different domains, illustrating how the “whac-a-mole” approach to content-blocking can be ineffective.

The underlying dispute between the parties was based on allegations that the defendants were exploiting the plaintiff’s goodwill by exclusively advertising the plaintiff’s products (networking devices related to industrial equipment) on their website. Importantly, while Google was not a party to these proceedings, the court in this instance permitted the plaintiff to apply for the injunction restraining both Google, Inc. and Google Canada Corporation from including the defendant’s websites in their search results. The court found that it had jurisdictional competence to hear the claim because it related to preventing a party from doing something in relation to “moveable property in British Columbia”. This was said to be a weak but sufficient connecting factor, despite the fact that Google is a worldwide search provider based in California, and was a non-party to the primary action conducting legitimate independent business.

Ingranting the injunction against Google, the Court specifically cited the need to “adapt to reality of e-commerce with its potential for abuse by those who would take the property of others and sell it through the borderless electronic web of the internet” (at [159]). Much like the EJC, the Canadian court emphasised that Google is not simply a “passive information site”. While it may have been an innocent bystander, it was “unwillingly facilitating” ongoing breaches of court orders to remove content that breached certain individual rights. Against this background, the Court concluded that the granting of an injunction was necessary to preserve the Court’s process and ensure that the defendants could not continue to flout the Court’s orders.

On 23 July 2014, the Court granted Google leave to appeal the Equustek decision but refused to stay enforcement of the worldwide injunction while the appeal is pending. It was said that Google failed to identify any “irreparable harm” or significant cost that would it would incur as a result of the injunction remaining in place.

Some food for thought

Decisions like Gonzalez and Equustek have important ramifications in the context of rights enforcement in the online environment. Significantly, they point to an increasing willingness on behalf of the courts to overlook territorial limitations and claim jurisdiction over the ever-expanding world wide web. Indeed, the court in Equustek specifically stated that the Court’s processes could not be protected unless the injunction ensured that searchers from any jurisdiction could not find the relevant websites.

Whatever the outcome of the final appeal in this case, or the series of “Google debates” on privacy and data protection, this issue will certainly remain front and centre in online commercial community.