By Mark Scott
The New York Times
The ruling on Tuesday by Europe’s highest court that Google can be forced to remove links from certain searches will be carried out by data privacy regulators at 28 different agencies across the European Union.
But the court gave the agencies little guidance in applying the ruling, and they are likely to interpret it in different ways. That means people in different European countries could receive different treatment, which could lead to jurisdiction shopping.
“The European Court of Justice is sending a strong message in this case,” said Peter Hustinx, the European data protection supervisor. “It’s now up to the countries to provide consistency in how it’s interpreted.”
At a conference in Berlin on Tuesday, regulators from three countries in the union — the Netherlands, Ireland and Britain — as well as officials from the union offered different views of how the law might be applied. The Dutch, for example, suggested they would look carefully at the court’s language in interpreting the ruling, while others said they would decide more on a case-by-case basis.
How regulators will interpret the ruling is just one of many questions that have left lawyers and technology experts in Europe scratching their heads over the decision.
Another issue is whether non-Europeans could petition European regulators to have links to their personal histories removed. Yet another is what kind of obligation Google or other search engines might have in responding to requests to remove links.
In their ruling, the panel of 13 judges at the European Court of Justice in Luxembourg not only gave no guidance on how their ruling was to be carried out, they also gave no indication that they recognized the Pandora’s box their ruling might open. The decision focused narrowly on the legal ruling that Google, as a “controller” of information, is bound by European privacy law to heed private citizens’ requests to remove links, when requested, absent a compelling public interest in leaving them up.
“The judges aren’t digitally savvy,” said Patrick van Eecke, a data protection lawyer at DLA Piper in Brussels who has argued cases before the court and echoed the views of other lawyers who have argued technology cases there. “It will be very difficult to put this legal ruling into practice.”
A spokesman for Google, which holds an 85 percent share of the digital search market in Europe, declined to comment or speculate on how the company’s European operations would be affected.
But legal experts and analysts said Google and others will probably have to create new procedures, involving new administrative offices, to process individual petitions for removing links.
“It may be very disruptive for search engines going forward,” said Luca Schiavoni, a technology analyst at the research company Ovum in London.
Google and other digital companies covered by the decision could try to restrict efforts to erase online content to just Europe, legal experts said, but it might be more practical — and cheaper — to simply remove links across all their worldwide platforms.
However they respond, the companies could find themselves wrestling with a quagmire of international legal issues. European consumers, for example, would be covered by European laws, in which free speech and privacy typically have a fairly equal standing. Under proposed stronger data-protection standards, any global company, even if it had no physical presence in Europe, would have to follow those rules if its services were used by European consumers.
But Americans seeking to play the European privacy card might find themselves restrained by the free-speech laws of the United States.
The European court got involved in the case when Spain’s data regulator sought its guidance after Google refused to remove links to a Spanish lawyer’s tax and debt information.
But Google has already faced a number of requests across Europe to take information down, for a variety of legal reasons.
In Germany, for instance, Google already blocks links to content that promotes fascist principles.
And in Italy, a local charity sued Google after a video showing a child with Down syndrome being bullied by other children was uploaded to YouTube, the company’s video service. The charity contended that the video violated the child’s privacy. Google removed the online content. Three of its executives, convicted of invasion of privacy by a lower court, were acquitted last year by the country’s supreme court.
But never before has Google, or any other Internet search provider, faced the prospect of handling so many demands for unlinking online content that the new European ruling may have unleashed.
“This move looks difficult to enforce on a large scale,” said Mr. Schiavoni, the Ovum analyst.