The Google case: why the European court understands the Internet no better than the Russian one

The decision of the European Court against Google Corporation on the so-called user’s right to “be forgotten” has already been called a turning point for Internet regulation and the Internet economy. The court found that European law gives private individuals the right to control the appearance of information about themselves in the public domain, especially if they are not public figures. If they want personal information to be “forgotten” by search engines, then they have the “right to make a request directly to the search engine operator.”

As a result, Google will have to exclude from search results links to Internet pages that contain personal information that is undesirable for viewing, “unless there are objective reasons against doing so” (for example, the information is of public interest). At the same time, the court does not order the removal of the article itself or other document to which the link leads. The European Court's verdict is a legal defeat for Google, but it follows from the court decision that it applies to any search engine operating in the EU countries.

Google is disappointed, and it's clear why. If we take the court's decision literally and do not look for pitfalls in it (and such in fairly general decisions of the highest court of the European Union are usually not so difficult to find), then it creates several levels of problems at once.

The first level is organizational and operational. The decision does not specify the procedure for users to contact us. And I can imagine how the company’s lawyers are now clutching their heads: thousands of users could flood the company with requests to remove unwanted links. Each of the requests will require analysis, solution and response. If objective reasons for refusal are identified, the request, with some probability, may escalate into legal proceedings.

Thousands of internal examinations, hundreds of trials, dozens of legal teams. The legal machinery of the largest Internet companies is tailored to work with user, corporate and government requests, but it is unlikely that it will be able to avoid stalling when the gates are opened to requests potentially affecting the entire reference mass. One can imagine that Google will develop an automated filtering system upon request, which will avoid manual control - but, firstly, the process is not fast, and secondly, completely meaningless: the court decision is formulated in such a way that it requires for each user request would have minimal legal expertise.

The second level of problems is purely legal. The existing solution is written in such a way that it leaves no opportunity for companies to apply legal protection on a case-by-case basis. In simple terms, they will not be able to profitably balance between the implementation of the procedure and the court - satisfying some requests and protesting others. Each satisfied application will be a serious argument in favor of the next applicant. Choosing just one path won’t work either: it’s impossible to sue every applicant, and meeting the requirements actually means a radical reform of the principles of the Internet.

It is the last point that Google’s defenders focus on – this is the third level of problems. The main controversial issue in Internet law over the past five years: should a search engine be held responsible for violations on third-party resources? Logic, the very principles of Internet development, as well as many private court decisions already seem to have given the answer to this question: no, it cannot. Search engines do not control third-party sites and personal data posted in the public domain. They are just information processing machines and, at best, if this issue is properly regulated at the legislative level, they can act as an intermediary patrol service, indicating to site owners what content complies with the legal standards and what does not. Every time it seems that the state and the Internet community have reached a consensus on this issue, but new court decisions and legislative initiatives set us back.

And now about the pitfalls. After all, it’s hard to believe that as a result, the European Internet market will suddenly find itself on the verge of legal and organizational collapse. Is everything lost for Google? No.

Firstly, the company can still prove its case in national courts, which in the case of direct contradictions can become a very serious factor when appealing an existing decision. It is unlikely that England or France will be suitable, where the court has repeatedly tried to regulate search engines, but in Germany Google has every chance not to lose.

Secondly, an important loophole remains in the very wording of the decision: to delete “provided there are no objective reasons against it.” A couple of successful trials, during which the objective reasons for the Internet company’s inaction will be proven, and lawyers will be extremely careful in advising their clients to deal with links on the Internet. If you wish, you can find objective reasons in any case; the only question is the degree of their social significance.

In this sense, the main legal case is indicative - the case of Spanish citizen Mario Costeja Gonzalez, on whose initiative the proceedings began. He complained to local data protection authorities that when searching for his name, the system returned a link to a newspaper ad from 1998, which indicated that Gonzalez's house was foreclosed and put up for auction. If Google's lawyers had had the "objective reasons" language at hand, the process could have gone in a completely different direction: for example, it could, based on the results of actual proceedings of citizens and insurance companies, show that information about Gonzalez's house is publicly important, at least Lenders and the entire insurance system are interested in it.

So the final point in this European trial has not yet been reached. But it is significant that the European court’s understanding of the principles of the functioning of the Internet differs little from the Russian court, whose decisions in the field of network regulation are declared repressive in advance. In fact, the courts - be it in Russia, Europe or the USA (to a much lesser extent) - simply do not have time to delve into this complex world for them and often make formal, little-informed decisions.