Hey, Google. We Don’t Want to be Forgotten
Last month, the online community (that’s pretty much the whole world, folks) was stunned by a ruling of the Court of Justice of the European Union (“EU COJ”), which held individuals had a right to request that Google remove 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 May 13th ruling quickly became known as the “Right to be forgotten” decision. Although the holding does not apply in the United States, and First Amendment issues would very likely dictate a different outcome here, the implications are potentially enormous.
What is the Court of Justice of the EU?
According to its website, the EU COJ is “interprets EU law to make sure it is applied in the same way in all EU countries. It also settles legal disputes between EU governments and EU institutions. Individuals, companies or organisations can also bring cases before the Court if they feel their rights have been infringed by an EU institution.” Each EU country has one judge on the Court.
The case in question was an “infringed by an EU institution” claim by a Spanish citizen against Google, Google Spain and a large Spanish newspaper. Without delving heavily into the facts, suffice it to say the citizen wished certain unflattering information removed from the defendants’ databases. As described in a press release issued by the Court, the decision is breathtakingly broad. The core holding is worthy of an extensive quote:
“So far as concerns, next, the extent of the responsibility of the operator of the search engine, the Court holds that the operator is, in certain circumstances, obliged to remove links to web pages that are published by third parties and contain information relating to a person from the list of results displayed following a search made on the basis of that person’s name. The Court makes it clear that such an obligation may also exist in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful… Finally, in response to the question whether the directive enables the data subject to request that links to web pages be removed from such a list of results on the grounds that he wishes the information appearing on those pages relating to him personally to be ‘forgotten’ after a certain time, the Court holds that, if it is found, following a request by the data subject, that the inclusion of those links in the list is, at this point in time, incompatible with the directive, the links and information in the list of results must be erased.”
To be clear, the decision goes beyond Spain and beyond Google. It applies throughout the EU, and applies to any search engine, including Yahoo and Bing, both of which are present in the EU.
Google reacted almost immediately. First, it apparently has decided not to challenge the ruling by, for example, pulling out of the EU countries. Next, on May 29th, it launched a “Right to be Forgotten” page by which European users can request removal of offensive information. But what standard will Google apply? Their web form states:
“In implementing this decision, we will assess each individual request and attempt to balance the privacy rights of the individual with the public’s right to know and distribute information. When evaluating your request, we will look at whether the results include outdated information about you, as well as whether there’s a public interest in the information—for example, information about financial scams, professional malpractice, criminal convictions, or public conduct of government officials.”
But how will Disputes be Resolved?
Left unstated on the web form is how disputes between Google and European users will be addressed. In the first day the “Right to be Forgotten” page was live, Google received over 12,000 requests. Disputes are bound to arise. Who will be the final arbiter? The possibility of different and conflicting solutions is great. For example, Germany is apparently mulling over creating special cyber arbitration tribunals. I can save Google, Microsoft, Yahoo and the EU lots of time and effort. The solution exists and it is ready to go. It is Online Dispute Resolution.
As I recently blogged online arbitration offers a solution to the problems that have vexed litigants for years. For “Right to be Forgotten” disputes, the benefits are more pronounced. First, the entire relationship between the parties has and will be virtual. A completely web-based dispute resolution system will help all parties resolve these disputes in a faster, more efficient and less costly way than traditional litigation. Unlike judicial processes, online arbitration hearings are scheduled for the convenience of the participants – they never have to leave their homes, offices or businesses. Hearings are conducted via phone and video conference. Documents are uploaded and stored securely in the Cloud. Parties, counsel, and arbitrators can conduct an arbitration from start to finish without getting on an airplane, leaving their home or business, or for that matter using a postage stamp. Trust me, I’m right about this one.
No Need to be Forgotten Here
And just who might be ready and able to provide comprehensive online dispute resolution services? None other than the host of this blog, Arbitration Resolution Services, Inc. (“ARS”), the world’s first completely cloud-based alternative dispute resolution system. In fact, ARS recently announced the launch of the company’s Arb-IT™ software that fully automates the step-by-step process of arbitration and mediation. ARS shouldn’t be hard to find, just Google it.
 See, e.g., Dispute Resolution Revolutionized by New Cloud-based Arb-itTM System from Arbitration Resolution Services, Inc. (Sep. 23, 2013), available at this link.