Still fighting for the right to be forgotten online

Dan Shefet doesn't want you to Google his name.

A Danish lawyer who has lived in Paris for 30 years, Shefet has been accused online of professional malpractice, fraud and even having connections to the Serbian mafia – accusations he strongly denies.

“It’s been nightmarish. It’s affected my entire family,” Shefet (60) said in his cluttered office in central Paris. “As a lawyer, I live and die by my reputation.”

In 2013, Shefet asked Google to take down links to the defamatory material. The search engine complied, but only on its French site.

Then last year, after Europe's highest court ruled that anyone with connections to Europe could ask that links about themselves be removed from search results, Shefet took a different approach. He sued Google's French unit – citing the so-called right-to-be-forgotten decision – and asked a Paris court to force the company to remove the links not just in France but in all of the company's global search engine domains.

And he won, perhaps setting a precedent that the European ruling should apply far more broadly than originally understood.

In the judgment for Shefet, the French judge relied on a specific point of the recent privacy ruling that said a company’s local subsidiary could be held liable for the activities of its parent. The judge ordered Google’s French subsidiary to pay daily fines of roughly $1,100 until links to the defamatory content were removed from all searches worldwide.

“Google put up a hell of a fight, but they lost,” Shefet said. “Now if Google doesn’t comply, they will be fined.”

Data protection rules

Google says it has already removed the defamatory links from its search results in Europe and says the court’s decision does not specifically demand that the company’s non-European domains must comply with the judgment. Although Google is being fined, no payments have been made.

Still, Shefet's case has raised a central question about data protection rules: how far can Europe impose its own strict privacy laws on sites that operate outside its borders, including those of Google, Microsoft and Facebook?

The ability for Europe to enforce the region’s privacy rules beyond its borders will be a major part of a report soon to be published by a committee set up by Google.

The report, expected to be released by the middle of this month, will advise the company on how to handle Europe’s right-to-be-forgotten standard. The company has complied with about 40 per cent of the 760,000 link-removal requests it has received over the past eight months, according to its latest transparency report.

The advisory group includes Wikipedia founder Jimmy Wales, who has been a vocal opponent of the European privacy decision, as well as a number of leading academics.

But after holding a number of public meetings in Europe, the committee remains divided over whether Google should impose the right-to-be-forgotten decision on all of its global search results, according to several people with direct knowledge of the matter who spoke on condition of anonymity because the report has yet to be completed.

Despite the differing views, however, the majority of the group is expected to recommend that Europe’s standard should only apply within the 28-country bloc. That would support Google’s efforts to limit the privacy decision so its search results outside the EU would remain unaffected.

"It's our strong view that there needs to be some way of limiting the concept because it is a European concept," Google's top lawyer, David Drummond, said of the right-to-be-forgotten ruling. "We've had a basic approach. We've followed it; on this question we've made removals Europewide, but not beyond."

Privacy watchdogs

Google’s position has put it at odds with many of Europe’s privacy watchdogs, which are concerned that people can sidestep the EU’s privacy rules simply by using a non-European web address. While links on European sites like Google.fr and Google.de may be removed, other domains like Google.com would not be affected.

Already, European regulators have issued guidelines calling on Google to apply the right-to-be-forgotten ruling to its entire search empire.

As people like Shefet increasingly take Google and others to court to force them to remove links from global search results, the battle over whether people have the right to be forgotten online is set to intensify. – (New York Times News Service)