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Update, April 15: Google both won and lost the first ‘right to be forgotten’ case in England on April 13, when a judge dismissed the claims of the first claimant and upheld those of the second, ruling that Google must delist the requested URLs in his case.

The High Court judge made a distinction between the gravity and relevance of the two men’s crimes. While both were convicted of business crimes over a decade ago, the judge ruled that information regarding NT1’s crime was “essentially public in its character” and he did not have a reasonable expectation of privacy. The information on NT2’s crime on the other hand, is no longer relevant and of “no sufficient legitimate interest” to the public, the judge wrote.

The judge also dismissed Google’s claims that it should benefit from the journalism exemption, striking down several of Google’s supporting arguments. Google’s argument that they get journalism points for providing access to journalistic content is ‘parasitic,’ wrote the judge, because it is entirely dependent on the journalism of the third-party site. The court also rejected the argument that Google was acting in the public interests when choosing to deny or accept ‘right to be forgotten’ requests. “There is no evidence that anyone at Google ever gave consideration to the public interest in continued publication of the URLs complained of, at any time before NT1 complained,” the judge wrote.

In the first “right to be forgotten” case to reach England’s High Court, two men are fighting to keep their past crimes out of Google’s search results, and the tech giant is fighting back by claiming it’s “journalistic.”

The case, which is actually two nearly identical cases, involves two businessmen who were both convicted of white-collar crimes in the ’90s, and requested that Google delist several URLs referencing their convictions, including news articles. When Google denied their requests, they sued under a 2014 European Union ruling which established the right of individuals to have information delisted from search indexes under certain conditions.

In its defense, Google has argued that it should be protected under an exception for journalism because it provides access to journalistic content. Even as a legal sleight of hand, the argument is quite a departure from Google’s customary efforts to present itself as a disinterested arbiter of information, a position that has become more untenable with time.

Gareth Corfield, a reporter for The Register who covered the cases from the courtroom, said it’s disingenuous of Google to put on the mantle of journalism only when it suits them. “They’ve gone through great lengths to say they don’t make any editorial judgement in processing results,” Corfield said, but “it now wants you to believe it is on a par with journalism.”

As the first case to test the “right to be forgotten” in England’s High Court, its outcome will likely set some ground rules in the roiling debate between personal privacy and freedom of expression on the internet. Google’s sudden identification with journalism may be a legal gambit, but it could have far-reaching effects across the landscape of data protection laws.

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The journalism argument

The core of the London case is a classic clash of rights. The claimants, called NT1 and NT2 to protect their identities, argue that since their crimes are decades old, they should be able to move on from their past. The URLs they are requesting to delist include news articles in national publications, an excerpt of a book, and interviews given by NT2 to news outlets. Google counters that the information is in the public interest, and still relevant given that the nature of the claimants’ business has not changed dramatically in the ensuing years.

Whether Google is motivated to protect the public interest or simply to expand its discretion, it has been given the power to do so.

In 2014, Europe’s top court ruled that a right to be forgotten existed under the EU’s Data Protection Directive, instituted in 1995. The court ordered Google to give Europeans the option of requesting to remove search results for their own names, if the information is “inadequate, irrelevant or excessive in relation to the purposes of the processing.”

The ruling placed Google at the port-of-call between privacy and the public interest. Guidelines provided by the court direct the search engine to balance these rights when making a decision whether or not to delist, with primacy given to privacy except where it is overridden by a “preponderant interest of the general public.”

So unless a requester sues, the decision is entirely up to Google’s discretion. The tech giant reported that it rejects more than half of the requests it receives, but did not provide insight as to why.

In this case, Google is defending its initial decision not to delist the URLs in question, suggesting that the court trust its discretion. But another piece of its defense makes a broader claim. Google says that it should be protected under the journalism exemption in the Data Protection Act from 1998, the UK version of the EU directive of 1995. The exemption allows any data processed for the “special purpose of journalism” to be exempt from data protection rules.

This argument directly challenges the EU court’s decision. In that case, the EU made a distinction between search engines and the third-party sites they link to. While the court can’t compel a news outlet like the BBC to remove content because it was published for journalistic purposes, it can compel Google to restrict access to it, because the search engine doesn’t enjoy the same protections.

Now, Google is arguing that in some cases it should. In Google’s words, a broad definition of journalism could include the work of a search engine because “[t]he process of making search results available is for the purpose of enabling users to access third party publishers’ content which discloses information, opinions, and ideas,” according to the documents filed with the court. Therefore, Google argues, “in appropriate cases” it can rely on the journalism exemption.

In Google’s words, a broad definition of journalism could include the work of a search engine.

England’s Information Commissioner dismissed Google’s argument and said that journalism presupposes a process that includes human editorial decision-making, something that Google’s very algorithmic service does not do. The commissioner warned that if the court sided with Google, it would completely defang the original ruling. “In effect,” she wrote, Google “would be able to operate the right to be forgotten regime almost entirely free from regulatory oversight and control.”

Google had previously argued for the journalism exemption in a case in Northern Ireland, involving the removal of 12 search results regarding a man’s sexual crimes. The judgment clarified that, according to Google, “to ask the question as to whether a search engine is journalism is to ask the wrong question.” The right question is “whether the material is journalistic material.”

In other words, Google is making the case that where they provide access to journalistic content, they are a part of that journalistic process.

Rehabilitation

The case highlights one of the primary uses of the right to be forgotten, and a key area that the right hoped to solve: How to deal with a person’s criminal or legal history when the past lives forever in the digital sphere.

Twenty percent of requests to Google are from people seeking to erase their legal history, according to Google’s report, and that number increases to 35 percent for URL takedown requests to news sites in particular. The guidelines provided by the EU include the gravity and recency of the crimes as factors to be considered in determining whether or not to delist a link.

The UK has an explicit mandate, the Offenders Rehabilitation Act, and a robust legal tradition to support the rehabilitation of offenders. The act, which restricts what can be published about a person’s past crimes after a certain amount of time elapses, hasn’t aged well. When it passed in 1974, no one dreamed that one day you could pull up a 20-year-old article with a Google search. But it’s not yet a mandate for the digital sphere, or part of legislation like RTBF.

Meg Leta Jones, the author of the 2016 book Ctrl+Z: The Right to be Forgotten, says a decision that applies the rehabilitation act to digital intermediaries could open the floodgates. “To extend that out into a general search would be a really interesting and powerful move,” Jones said, because it would expand the act’s power beyond its initial intent. “You could do that for a lot of legal issues. You could say, ‘Okay we’re going to extend this out into other platforms, we’re going to extend this out into social media.’”

In a meta application of this issue, the court placed a reporting restriction order on the trial, with firm restrictions as to what news outlets can and cannot say about the claimants, including their names, their occupations, and the exact nature of their past crimes. If that information were shared, it would defeat the entire purpose of the case.

Corfield says the order is a draconian one by the standards of the court, and a gamble to boot. “If the decision goes against either of these two claimants, then everything they tried to keep under wraps is going to be shouted from the rooftops, so it’s a pretty high stakes game for them,” Corfield said.

And a high-stakes game overall. “One of the major problems of [the] right to be forgotten is the privatizing of decisions which really ought to be made by public bodies or the courts,” says George Brock, a Professor of Journalism at City University London, and the author of the 2016 book, The Right to be Forgotten.

Given the breadth of the right to be forgotten decision, says Brock, “there is a lot of scope for taking out of circulation that which should still be there for the public interest.”

A spokesperson for Google says in a statement that, “We take great care not to remove search results that are clearly in the public interest and will defend the public’s right to access lawful information.”

Where we go from here

The two cases have concluded in court, and judgment is expected in the coming weeks. It comes at a moment of intense debate over data protection, and as Europe gears up for an expected overhaul to their data protection regime.

In May, the General Data Protection Regulation will go into enforcement in the EU, replacing the 1995 directive on which the right to be forgotten legislation is based. The UK is expected to update its own data protection rules later this year and, like the GDPR, includes language on the right to be forgotten (rechristened the “right to erasure”). After Brexit, there will be further changes to the application of the various legal schemas.

With so much about the data protection regulations up in the air, a judgment on the right to be forgotten will likely serve as a foothold for future debate on the subject. If Google were to benefit from the journalism exemption, it could be seen as a win for public interest purists who would like to see less information delisted, but it would also muddy the waters by giving the already all-powerful Google a tool designed to protect the more vulnerable work of a free press.

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Chava Gourarie is a freelance writer based in New York and a former CJR Delacorte Fellow. Follow her on Twitter at @ChavaRisa