Home > Uncategorized > Google Never Forgets: Uncle Sugar Winding Up the Mob to Go After Judges

Google Never Forgets: Uncle Sugar Winding Up the Mob to Go After Judges

May 15, 2014

Google’s Chairman Eric Schmidt–or as he’s known around MTP “Uncle Sugar”–is having a very bad week.  And that’s saying something.

Google lost a court case in a way that will affect their behavior–not a fine, not a piece of legislation they can lobby out of existence, but the thing they hate more than anything.  A court decision that tells them what to do.  A court decision clarifying Europe’s “right to be forgotten.”   Yep, wild-eyed SOPAns are back, but this time it’s not a legislature trying to protect the weirdo hippie freak musicians.  No, this time it’s the flip side of the same issue–this time it’s your intellectual property–it’s information about you.

Uncle Sugar is Ordered to Behave Himself

As I have argued many times, going after Google for damages is a fools errand.  Why?  Because a company that will simply pay $500,000,000 in a fine for violating the Controlled Substances Act and pretty much go right back to what they were doing before is unlikely to ever find a court willing to level the kind of fine that would really get Google’s attention.  The size of that fine would be so out of whack with other fines or sanctions that a prosecutor or a court will be reluctant to even think in those terms.

So what you really need to do in the case of Google is fine them $1 but force them to behave.  And do they ever hate that.  The music business is already experiencing its own version of the “right to be forgotten”–we send close to 1 million take down notices a day to Google for linking to infringing sites in search.  And do they ever hate that.  But this time it’s a case that actually forces them to delink based on privacy, not copyright.  And good luck with labeling individuals “privacy maximalists” when it comes to protecting their reputations or their children’s.

It happened this week and it’s a beautiful thing–so far.  The European Court of Justice (the highest appellate court in the European Union for cases involving EU law) has ruled that Google’s ability to exploit personal information about human beings has a limit.  According to the New York Times:

Europe’s highest court said on Tuesday that people had the right to influence what the world could learn about them through online searches, a ruling that rejected long-established notions about the free flow of information on the Internet.

A search engine like Google should allow online users to be “forgotten” after a certain time by erasing links to web pages unless there are “particular reasons” not to, the European Court of Justice in Luxembourg said.

The decision underlined the power of search companies to retrieve controversial information while simultaneously placing sharp limits on their ability to do so.

The ECJ summarized its holding:

An internet search engine operator is responsible for the processing that it carries out of personal data which appear on web pages published by third parties.

Thus, if , following a search made on the basis of a person’s name, the list of results displays a link to a web page which contains information on the person in question, that data subject may approach the operator directly and, where the operator does not grant his request, bring the matter before the competent authorities in order to obtain, under certain conditions, the removal of that link from the list of results.

Andrew Orlowski has, I think, got it about right:

[T]he European Court acknowledged that a dominant search engine has immense power over reputations – far more than any newspaper. It has a unique ability to create and define an individual’s reputation which a newspaper alone can’t create. That’s “information which potentially concerns a vast number of aspects of his private life and which, without the search engine, could not have been interconnected or could have been only with great difficulty,” according to the ruling.

Uncle Sugar–a man with a few things to be forgotten himself–spoke at a Google shareholder’s meeting after the ruling–kind of interesting that Google holds shareholder meetings since none of the shareholders in the audience have any say in the operation of the company.  Talk about your right to be forgotten!

According to the Telegraph, Schmidt said:

A simple way of understanding what happened here is that you have a collision between a right to be forgotten and a right to know. From Google’s perspective that’s a balance.

Google believes, having looked at the decision which is binding, that the balance that was struck was wrong.

Now the question is what will Google do about it.

Don’t Mess with Jimbo

The first thing that seems to be happening is that rather bizarre commentary is surfacing criticizing the judges on the European Court of Justice.  We are told by the ever loyal-to-Mountain View Jimbo Wales that the “EU censorship decision” is about the “free flow of information”.

Yep–that’s right.  They’re breaking the Internet again.  And reminiscent of the Texas “Don’t Mess with Texas” anti-littering campaign, Jimbo is already threatening mob revolt (while praying that lightning strikes twice):

The online encyclopedia doesn’t do “a lot of automated sifting of data” Wales said, but more important, Wikipedia is “really hard to mess with,” and any form of censorship would result in a public backlash.

A little bit too much swagger, don’t you think?  The last day of rage involved American companies with an American law in an American legislature.  I think Jimbo has miscalculated.  Or as Rick Perry might say, in a word “Oops….”

What is To Be Done?

This is all fine, everyone seems to be speaking and information seems to be flowing.  But if the past is any guide, when Google finds its behavior being restricted in ways it does not like, particularly when it comes to Google’s ability to profit from your personal information, Google is going to cause its surrogates to pitch a fit.  And how that fit is pitched is going to tell you a lot about Google.

If, for example, Google tries to throw–meaning fund–another party like SOPA/ACTA as Jimbo suggests, will it direct that ire at judges?  Because this European Court of Justice decision is different than legislation.  Mobbing Capitol Hill is one thing–that’s all part of representative democracy.  Taken to extremes, mind you, but still part of the process.

Courts are different.  Courts are deliberative bodies charged with interpreting the law.  And this is what really pisses Google off.  A mere judge told them that they had to delist some personal information, a mere judge told them that there was some information that they couldn’t sell to the highest bidder (literally).  Some bunch of mere judges told them to change their behavior.  And they can’t buy their way out of the corner through fines or lobbying.

Why?  It’s hard to lobby a court.  (Outside of the clerks, of course, trained in elite law schools that Google funds.)

And what’s worse–the ECJ just covers Europe.  Right along side the Google press we also see op-eds like this: We All Have the Right to be Forgotten.  What if instead of standing up to someone daring to mess with Jimbo, the public stood up and messed with Jimbo, Google and the lot?  Because you know that right to be forgotten thing actually sounds pretty good to the average bear.

So let’s keep an eye on this–will we witness the spectacle of a major American multinational wanna-be-but-not-too-much media company using the personal information it has about European judges to roil up the mob to intimidate those judges on European soil?  Maybe.

If the mobs attack the ECJ, here’s the message that Google will send to all judges, including those in Spain who must now interpret the ruling by the ECJ.

We know where you live.  You’re in Street View.




  1. May 16, 2014 at 03:50

    Jimmy Wales has a problem as his ‘encyclopaedia built by children and polemicists’ is often comprised of exactly that which Google were taken to court over:


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