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A French court has convicted Google of failing to comply with a right to be forgotten case after it took down links on its French subsidiary but failed to do so globally.
Dan Shefet, a lawyer practicing in France, first sued the subsidiary in August 2013 over defamation lodged at him and his firm by a gossip site that, among other things, falsely accused him of losing his licence to practice law in France and Denmark.
The French court sided with Shefet and told Google to yank certain URLs on a worldwide basis.
Google, however, only took down the sites from google.fr and, according to Shefet, ignored subsequent demands based on the court order.
Removing links from sites ending in “.fr” didn’t help matters much, Shefet said, given that his clients include those from other countries.
Now, the French child is paying for the sins of its US parent.
A judgment handed down in September by the Paris Tribunal de Grande Instance means that Google France is facing fines of €1,000 ($1,252, £799) a day, plus €1,500 to cover the plaintiff’s costs.
According to Shefet’s lawyer, this decision against how Google treats takedown requests worldwide is a first not only in France but in Europe.
The French court isn’t the first to order Google US to bury search results, mind you. Canada got there before it.
In June, a Canadian court ruled that Google had to bury search results for a Canadian company’s competitor, not just in Canada but around the world.
A month later, the Court of Appeal of British Columbia had given the go-ahead for Google to appeal the decision, but it refused to stay enforcement of the injunction.
The French court’s decision may now bolster other European courts in their efforts to impose court orders on online companies beyond their own borders.
The decision relies on the European right to be forgotten: a ruling by the European Court of Justice (ECJ) that handed victory to a Spanish man who wanted Google to remove links to an old article saying that his home was being repossessed to pay off debts.
In the French case, Google’s lawyers had tried to get the removal limited to links on google.fr, but the judge, relying on the reasoning in the ECJ’s ruling, rejected the attempt, saying that Google and its French subsidiary are inseparable.
From that ruling:
The activities of the operator of the search engine and those of its establishment situated in the member state concerned are inextricably linked.
Shefet predicts that the decision will give European courts a new tool in forcing Google to forget things worldwide. It’s not just about privacy or defamation, he said, but rather could substantially alter the entire range of business liabilities for multi-national corporations with local subsidiaries.
The Guardian quotes him:
The real importance of those decisions is that now any individual in the UK – or another member state – who suffers from Google’s [links to a libelous article] may obtain an injunction against their local Google subsidiary.
Until now a subsidiary could not be legally forced under the threat of daily penalties to deliver a result which was beyond its control. The complainant would therefore have to obtain judgment against Google in the US because only Google Inc controls the search engine world wide.
Now a daily penalty can be inflicted upon Google UK by local courts until Google Inc delivers the result by way of [removing links] world wide.
But while the European Union’s power to drown links seems to have gotten stronger, back in Google’s home country, the opposite is happening, with a San Francisco Superior Court judge last week upholding the already widespread legal opinion in the US that search results constitute free speech.
That means, the judge decided, that the owner of a website called CoastNews had no right to sue Google for putting CoastNews too far down in search results, while Bing and Yahoo were turning up CoastNews in the number one spot.
In its latest transparency report, Google said that since it launched the removal request process on 29 May 2014, it’s received 169,668 takedown requests.
It’s complied with a minority – 41.7% – of those requests, removing links pertaining to, for example, a German rape survivor who asked the company to remove a link to a newspaper article about the crime when people search on the individual’s name.
It’s refused to take down links to articles that are merely embarrassing or which are related to business as opposed to private matters, such as that from a British media professional who wanted to bury embarrassing content he posted.
According to the Guardian, Google is considering its options regarding the French decision, including a possible appeal. It says that it already removes links to defamatory online articles, thereby fulfilling its legal obligations to French citizens.
The Guardian quotes a Google spokesperson:
This was initially a defamation case and it began before the … ruling on the right to be forgotten. We are reviewing the ruling and considering our options. More broadly, the right to be forgotten raises some difficult issues and so we’re seeking advice – both from data protection authorities and via our Advisory Council – on the principles we should apply when making these difficult decisions.
Image of Google courtesy of l i g h t p o e t / Shutterstock.com.
I still don’t see why these people are attempting to sue Google for this – possibly just because they’re an easy target now that ECJ seems to be attacking them on a daily basis??
Surely the lawsuits should be directed at the gossip site hosting the article in the first place?!? After all, other search engines are available and will also find this content…
This is correct. However, even after a gossip site has taken down content, teasers and headings are still visible in most search engines. This is analogous to someone repeating a rumor long after it has been discredited. Search engines, therefore, SHOULD have to take this down.
But wouldn’t it be sensible to require search engines to STOP displaying this information if the original has been deleted? Seems to me a 404 should not only trigger a message in a user’s browser but a scheduled cleanup of out-of-date search engine indexes.
Joe, your reasoning doesn’t make sense. Search engines re-check links regularly and headings _aren’t_ visible long after a site has been taken down. Would you really use a search engine that gave a lot of links to 404 pages? Think about it–when was the last time you got a 404 or a page that didn’t contain the information you searched for?
Search engines even know what pages are volatile. They don’t retain links to the headlines on cnn.com, for example, because they know the page will change in hours. Instead, they record a “permalink.”
Now, a couple more things to think about:
1) For several years I did informal background checks for a social club. I used search engines and other tools to screen undesirable individuals. from our meetings in private homes. This useful tool would not be available to detect thieves or predators if such people could simply erase their misdeeds. “We are at war with Eastasia. We have always been at war with Eastasia. Oceania has always been our friend.”
2) What about Brewster Kahle’s site, archive dot org? No one seems to be telling him what to erase? Would you have that purged too? Why not pass a law requiring all history books and newspaper archives older than 24 months to be burned? Where does this stop?
Last I heard, France doesn’t have jurisdiction over American companies, no?
Would Banque Nationale de Paris pay up because a court in Swaziland decided to fine it?
Perhaps approaching the US directly and asking for co-operation should have been their first approach?
If Banque Nationale de Paris does business in Swaziland, sure.
Also, remember that Google is based out of Ireland (for tax purposes), which is part of the EU. As such, they have to play by EU rules.
The French are so unAmerican!
By definition, yes.
I think that’s one of those things we’re still working out globally is how to deal with the fact that the Internet made borders nearly irreverent for information, and information is incredibly powerful today. It’s similar to the debate counties and cities had pre-prohibition when some would be dry and some would be wet. You could guarantee the wet-dry border would be packed with saloons on the wet side. One reason Oregon just legalized marijuana was that the only large city was right on the border with Washington that had already legalized it and trying to enforce that mess wasn’t worth it.
But even stumbling down the block across the border is a lot easier to control than the flow of information. Cooperation and respect will ultimately be the only way we can figure this out. Something that’s always been difficult cross-culture, even when those cultures are as similar as France and the US are.
If a United States court can order disclosure of email stored in Ireland, why can’t a French court order search results modified on a United States server?