Tag: Google (page 1 of 2)

The very predictable end of the Google News service in Spain

This web page in Spain... no más!

This web page in Spain… no más!

Google has announced that, in a few days, it will remove Spanish news publishers’ content from its Google News service and close this service in Spain.

Well, this really does not get any nearer of being a surprise. In fact, it actually was the most expectable outcome, considering the amendments to the Spanish intellectual property law passed last October. As you might well remember, this law imposes on Spanish publishers to charge a compulsory licensing fee for the use of snippets of text from their articles by news aggregators. As a consequence, not only newspapers would get to choose to have their publications be included on Google News (after all, it is free publicity and generates traffic and revenues), this law also now compels them to be paid for it.

This extraordinary piece of legislation was intended to succeed where a similar German law (the ancillary copyright law), introduced in 2013, had previously failed. Pretending to avoid that, once they realized the loss of traffic associated with not being indexed on Google News, publishers would voluntarily waived their right to a licensing fee, a unprecedented inalienable right to payment was therefore created, meaning that no one could allow the use of snippets for free. However, considering that, from the very first draft, it was particularly directed to Google, this law is now pre-empted before even entering into force on the first day of January.

Thus said, it is quite easy to predict that 2015 will not start well for Spanish publishers. Not only won’t they be able to obtain from Google the desirable fees for the use of excerpts from their publications, but they won’t be able to benefit either from the traffic directed to their websites and the revenues which are associated to advertising. This will certainly affect the most the weakest existing publishing businesses or the startups intending to enter the publishing market.

Perhaps learning something from this would not be such a bad new year’s resolution for the EU and for other Member States regarding similar legislative initiatives.

The ‘right to be forgotten’
extended to Google.com

Forgetting everywhere

Forgetting everywhere

As you might well remember, the Court of Justice of the European Union, in a better known as ‘right to be forgotten’ judgement, ruled that individuals, provided that certain prerequisites are met, have the right to require from search engines, such as Google, to remove certain results about them, subsequently presented to a search based on a person’s name. (you can read more here, here, here, here and here) According to the ruling, the original information will still be accessible under other search terms or by direct access to the publisher’s original website.

In this context, in cases where the criteria for deletion are met and where search engines do not remove the links requested by the data subject, the latter would be able to complain to its national data protection or judicial authority.

Therefore, last week, the Article 29 Working Party, which gathers representatives of the 28 national data protection authorities (hereafter DPAs) of the EU Member States, has adopted Guidelines on the implementation of the judgement. This has not really come as a surprise as the Working Party had already announced its decision to establish a common approach to the right to be forgotten.

Indeed, the ruling left many questions unanswered. For instance, it was left to be found out if Google was only obliged to block requested names for European domain names only or should do so for all Google search domains. Moreover, it was left unanswered how could the balance between the relevant rights and interests at stake be achieved and how the ‘public figure’ concept could be defined.

According to the Article 29 Working Party, the ruling only refers to search engines as “data controllers” and is not to be applicable to the original source of information, so the information is not to be removed entirely, just from search indexes.

Furthermore, considering that users are directed to localised editions of the company’s search service, when they initially try to visit the Google.com website, Google’s current practice regarding delisting procedures consists in delisting results which appear in the European versions of its search engines, but not the international one ‘.com’. In this regard, the Article 29 Working Party considers that Google has therefore failed to effectively implement the abovementioned ruling. It considers, indeed, that limiting the de-listing of search results to EU domains, on the grounds that users tend to access search engines via their national domains, does not sufficiently guarantees the rights of the data subjects. In fact, it concluded that the de-listing should be conducted on all the relevant ‘.com’ domains. This conclusion is certainly in line with a recent position of a French court which decided that Google should remove a link to a defamatory article for a particular search on both on its ‘.fr’ and ‘.com’ domains.

In addition, the document clarifies that Google is not required to block links if searches lead to the same result without using the individual’s name and that, although all individuals have a right to data protection under EU law, DPAs should focus on claims where there is a clear link between the data subject and the EU.

Moreover, referring to the notice stating that “some results may have been removed under data protection law in Europe” posted by Google at the bottom of search results, the Working Party deems that the information provided to users of search engines that the list of results to their queries is not complete has no legal ground under data protection law and is only acceptable if it cannot be concluded that the results related to a particular individual have been de-listed.

Likewise, because there is no legal basis for such routine communication under EU data protection, and in order to avoid a ‘Streisand effect’, it is considered that search engines should not, as a general practice, inform the webmasters of the pages affected by removals of the fact that some web pages cannot be accessed from the search engine in response to a specific name based query. However, it is accepted that contacting the original editor of the content being targeted by a search de-listing request might actually be appropriate when more information is required in order to take a decision.

Furthermore, the guidelines establish a list of 13 common criteria which the data protection authorities should apply when handling complaints following refusals of de-listing by search engines.

It is also stated that no single criterion is determinative and that, in most cases, more than one will have to be taken into consideration. However, each criterion has to be applied in the light of the interest of the general public in having access to the information.

The Working Party further concluded that the impact of the de-listing on individuals’ rights to freedom of expression and access to information will prove, in practice, to be very limited and the balance between the public interest and the rights of the data subject will have to be assessed casuistically.

The abovementioned list includes an orientation regarding what can constitute ‘public life’, considering that, while details associated to the private life of a public figure may be delisted, information regarding the public role or activities should be available for search:

It is not possible to establish with certainty the type of role in public life an individual must have to justify public access to information about them via a search result. However, by way of illustration, politicians, senior public officials, business-people and members of the (regulated) professions can usually be considered to fulfil a role in public life. There is an argument in favour of the public being able to search for information relevant to their public roles and activities.

A good rule of thumb is to try to decide where the public having access to the particular information – made available through a search on the data subject’s name – would protect them against improper public or professional conduct. It is equally difficult to define the subgroup of ‘public figures’. In general, it can be said that public figures are individuals who, due to their functions/commitments, have a degree of media exposure.

In addition, search engines are called upon to be more transparent regarding the de-listing criteria. It is a legitimate concern as Google only has released very limited and abstract information on this regard.

Despite the fact that these guidelines are not legally binding, they reflect a consensual position of national regulators and therefore will certainly influence the enforcement decisions taken by the Member States’ data protection authorities. Considering all the issues surrounding the implementation of the ruling, these guidelines are undoubtedly useful. Nonetheless, it remains to be seen whether Google will actually follow the guidance and extend de-listing to ‘.com’ as well.

In my personal opinion, it is quite outlandish and unrealistic, from both legal and technical points of view, to assume that the ‘right to be forgotten’ can become a global scenario and not just a European one. I mean, considering the overlapping jurisdictions regarding Internet, how come nobody considers the evidence that such a global de-listing sets up a divergence on the international level, between the EU Member States and the rest of the world?

The Internet should not be subjected to geographical boundaries. Assuming that the rules referring to a country can actually apply worldly online can be associated with web censorship. In fact, the EU is not alone in its aim for the global implementation of its rules. Russia and China, for instance, have quite global ambitions regarding Internet governance. Of course, one may argue that the EU motivations are legitimate, intended to protect some individuals’ private sphere, and do not amount to censorship. But considering that this legitimacy of the measures is usually the most frequent argument regarding censorship, is this really the example the EU wants to set?

Google Break: The new reality show on the EU channel

Let's all break Google, the new EU h(l)obby!

Let’s all break Google, the new EU h(l)obby!

I like the Google search service. I like it because it is the best at what it does. It is a fact that Google’s dominant position in the EU market is not due to the lack of competitors or due to a weaker competition. There are other big companies which provide the same sort of services. Microsoft Bing, Yahoo, Duck Duck Go… But they just don’t do it as well. Google’s dominance comes from a vast majority of EU citizens preferring its services over those provided by its competitors. It hasn’t grown into a verb by mere chance. This is what competition on the merits is all about. Theoretically, there is nothing wrong with dominance legitimately acquired. What about in practice?

In practice, Google has been having full-size antitrust problems regarding how it manages the search results presented. It has been alleged that those are manipulated in order to promote the company’s own services at its competitors’ expense and to be favourable to certain business in which it has interest while being detrimental to others. The decline of once very influential publishing industries under the impact of the internet has most certainly contributed to the problem.

It is a fact that Google crosses the results from its search algorithms with links to its own related web services, such as Youtube, Maps, News, which expands the format of search results beyond a meagre index of links. From the user’s viewpoint, this is a good thing. From its competitors’ perspective, not so much. While Google is obviously dominant, it is yet to be confirmed if it actually abuses its position in the EU market. Nevertheless, legitimate fears that this self-promotion may be harmful to users is increasingly prevailing among the EU regulators, to which the weight of certain points of interests might not have been completely irrelevant.

In this context, the European Parliament just voted a resolution on “consumer rights in the digital single market”, proposed by the European People’s Party (EPP) and the Social and Democrats (S&D), the two biggest political blocs of the European Parliament.

If I would be remotely naïve, I would consider that it is certainly a coincidence that Andreas Schwab, one of the MEP who proposed the resolution, is tied to the law firm which represents some of the German publishers against Google… Or that the fact that the two MEPs who proposed the resolution are national citizens from Germany and Spain, precisely the countries where legislative initiatives have recently been taken in order to make Google pay for links, is not more than a happenstance.

Anyway, in the paragraph 15 of the resolution, despite being outlined the relevance of search engines for the functioning of a competitive digital single market, the European Commission is called upon to apply existing legislation and to consider if ‘unbundling’ the search engines operations of Internet technologies companies with activities in the EU from the rest of their commercial business services may boost competition in the EU market.

In a less politically correct way to put it, companies which promote their own non-search services through their search engine should have those services disaggregated. To what end? Well, what would be achieved through this action is not clear.

It is, however, evocative of previous statements of German politicians who considered that Google’s dominant position should be broken. In the same line, several of the complainants against Google – once again, inadvertently, mostly German publishers – called for this separation.

As far as I am aware, the European Commission has never requested the break-up of any company for anti-competitive practices. In fact, structural remedies as such should only be imposed if there is no equally effective solution, if this latter is more burdensome, or there is a risk for repeated infringement. Nonetheless, in this case, it seems very unlikely that it can be considered that Google’s competitors actually need Google’s infrastructure in order to be able to provide their own services. Anyway, for Google to actually be ‘broken up’, it would have to be demonstrated that it has abused its dominance in the search or advertising markets.

Needless to say, the separation of its search engine operations from its other lines of business would be seriously harmful for Google. As it is well known, Google supplements the results from its search algorithms with advertising which is its primary source of income. In case of separation, its value would certainly drop, its databases would be less complete and its search engine service would end up being less effective. Ironically, the measure would be quite disadvantageous to users of the search service.

Moreover, and more gravely, the resolution considers that “search process and results should be unbiased” and calls on promoting “non-discriminatory online search” in its paragraph 17, where it calls on the Commission to prevent any abuse in the marketing of interlinked services by search engine operators:

when operating search engines for users, the search process and results should be unbiased in order to keep internet searches non-discriminatory, to ensure more competition and choice for users and consumers and to maintain the diversity of sources of information; notes, therefore, that indexation, evaluation, presentation and ranking by search engines must be unbiased and transparent.

It appears that the underlying principle is that, considering that consumers do prefer its search services over those provided by its competitors, consumers shouldn’t have to use a search provider’s bundle service just because that company actually promotes its other own services. One should ask, though, if it is reasonable to demand from a search engine service provider to not reflect on the search results presented any prominence of its own services and to self-marketing?

Furthermore, while one could believe that there are some good intentions behind this ‘search neutrality’ goal, it seems that the intention is for providers to reveal their algorithm and how the results are determined, in order to ensure that the process is fairly conduct and is not unfavourable to its competitors. Nevertheless, the ‘search neutrality’ concept is just ludicrous. Search is inherently biased according to the criteria set. That is how search is supposed to be. It should return the most completed version of the results we ask to find and not results manipulated by the strongest website owner.

Coincidently, it reminds of the comical German ‘ancillary copyright’ which was intended to license revenue from Google for indexing publishers content and of Günther Oettinger own stance on the issue. So one should really worry if this is just not the first step for a European ancillary copyright for press publishers.

To be true, the document does not mention Google or any specific search engine. However, it is very likely to be particularly directed to Google as the company has a European market share of over 90%.

Despite its non-binding nature, the fact that the European Parliament has no initiate legislative powers and certainly has no competence regarding the unbundling of companies, the resolution shows that the European Parliament is getting involved in a matter that falls within the jurisdiction of the Commission, considering the ongoing proceedings aiming to address the competition concerns on the market of internet search engines.

Anyway, it is certainly intended to put pressure on Margrethe Vestager, the new EU Competition Commissioner, considering that Joaquin Almunia, its predecessor, was unable to reach a satisfactory settlement regarding the complaints and the allegations concerning its market power. In this regard, Joaquin Almunia considered that Google could not be broken up under existing competition legislation. Until now, Margrethe Vestager is being cautious regarding the next steps to be taken.

Thus said, I guess this is just the beginning of this saga… But, considering all this, I cannot help being pessimist. I am quite worried regarding what may follow.

Net Neutrality in the EU – A work still in progress

Which neutrality do you prefer?

Which neutrality do you prefer? 1)Copyright by EFF-Graphics under the Creative Commons Attribution 3.0 Unported

Aiming to allow everyone to communicate with anybody globally, the net neutrality principle establishes that all content providers should have equal access on networks. In this context, it enables people to access and impart information and it provides entrepreneurs with the proper platform to invest and develop new businesses models. Therefore, non-discrimination commitments are required from Internet Services Providers regarding users, contents, devices or communications.

But it is easier said than done… In fact, it appears that net neutrality is not a straight forward principle, thus allowing different interpretations. Perhaps the very own nature of the concept can – at least partially – explain the difficulty of the institutional and political debates surrounding the legislative reforms in the telecommunications sector both in the EU and in the USA.

On the EU side, the negotiations regarding the draft regulation laying down measures concerning the European single market for electronic communications and to achieve a Connected Continent (the TSM proposal) have been quite tumultuous.

As you might well remember, it all began with the text proposed by the European Commission, in 2013, which was claimed to fully implement the principle of net neutrality, while it actually stripped it of all real meaning. In fact, it foresaw an almost unlimited right of Internet Services Providers (hereafter ISPs) to manage Internet traffic.

Afterwards, there were the debates within the European Parliament, which first reading ended successfully last April, resulting in a clear and strict interpretation of the net neutrality principle and a proper framework for ‘specialised services’. Indeed, according to the text, telecommunications operators would be allowed to develop access offers with an optimised quality of service for specific applications, which wouldn’t be able to not run properly on the so-called ‘best-effort Internet’.2)A Best Effort Internet refers to the model of the Internet that does not differentiate between ‘levels’ of content providers. All web authors, large and small, enjoy the same ability to produce content or services that can, via the Internet reach an audience / customer base.

Currently, the debates are being held within the Council of the European Union which, along the European Parliament, is the EU co-legislator. However, the meeting of the EU Member States’ telecommunications ministers, held in Luxembourg, past June, clearly demonstrated the existing major divisions among Member States.

Considering the most recent proposal of the Italian Presidency (see here and here), it was quite evident that Member States were heading to a looser and weaker approach to net neutrality rules. The proposal consisted in a ‘principles-based approach’ in order not to inhibit innovation and to avoid having an obsolete regulation in the future.

However, the proposal did not address the principle of net neutrality but rather its opposite, as it set principles to traffic management:

Clear principles for traffic management in general, as well as the obligation to maintain sufficient network capacity for the internet access service regardless of other services also delivered over the same access.

In fact, the very important definitions of net neutrality and specialised services were not included in the text.

According to the document of the Italian Presidency, “instead of a definition of net neutrality there could be a reference to the objective of net neutrality, e.g. in an explanatory recital, which would resolve the concerns that the definition might be at variance with the specific provisions.” However, clear provisions are required in order to ensure its full enforcement.

Specialised services, which refer to the types of content that operators could prioritise over others, despite not being regulated, were not prohibited. Thus said, if they were not foreseen in the text, the principle of non-discrimination should at least have been clearly stated instead. It was not the case.

In its place, it was foreseen that ISPs will be able to apply traffic management measures as long as they were transparent, proportionate and not anti-competitive. Measures “that block, slow down, alter, degrade or discriminate against specific content, applications or services, or specific classes thereof” could be applied under certain circumstances, such as to “prevent the transmission of unsolicited communications”; to prevent “temporary congestion control”; or to meet their “obligations under a contract with an end-user to deliver a service requiring a specific level of quality to that end-user”.

Moreover, the proposal did not contain any reference to the obligation of Member States regarding the guarantee of the right to freedom of expression, which must be ensured at both the end-user and the content provider.

Thus said, this text raised some confusions and concerns. To start with, regarding unsolicited communications, it must be noted that an e-mail service is not an internet access service. Moreover, it should have been clarified that the prevention of temporary congestion should be an exception and not be established ‘by default’. Furthermore, the concept of a “contract with an end-user to deliver a service requiring a specific level of quality to that end-use” is not fully compatible with the ‘best effort’ Internet concept.

Last but not the least; the text lacked a clear non-discrimination principle for Internet access providers. For instance, the text did not refer the discrimination based on pricing which would lead to a result where big telecommunications companies would be able to pay for preferential treatment for their services or to have their services accessible for free, while others, with less financial capacity, would end up being excluded due to throttling of their services.

As a result, ISPs would turn themselves into the gatekeepers of a market of customers which would only be accessible for those companies willing to pay accordingly. In fact, this is a crucial point because consumers will invariably prefer the websites or services made available for free.

The direct result of such a text was that telecoms operators would be able to discriminate between different users, their communications or the content accessed. Internet access providers, and not users, would therefore decide what applications and content could be freely used.

In an unfortunate coincidence, Günther Oettinger, the already well-know Digital Commissioner for its ‘inside the box’ way of thinking, published his first post on his blog, arguing that the full coverage of internet access in rural zones would be finally possible if the telecommunications operators would be allowed “to reap the benefit of their investments”.

Moreover, a letter sent from Jean-Claude Juncker and Frans Timmermans to the other commissioners is being interpreted as suggesting that the European Commission might change direction regarding its initial proposal.

In this context, the main challenge is to conciliate the open internet as a instrument for the democratic expression, which promotes informed citizenship and plurality of opinions, with the network operators own interests in managing their networks, namely through specialized services. ISPs should be entitled to manage traffic – namely offering customers internet access packages with different speeds and volumes – but the traffic should neither be prioritized nor discriminated based on the content, services, applications, or devices used.

More recently, the Italian Presidency appears to have distanced itself from its own proposals, alleging that

none of the compromise drafts, which had been developed at a technical level, has gathered enough consensus. Such drafts (…) are significantly different from the positions of the single Member States, including Italy, that has always chosen to act as a neutral mediator under the Presidency rather than imposing its own point of view.

This is just the consequence of the strong divergences which oppose EU Member States, which is expected to be resolved at a political level.

In this context, the recent resolution adopted by the European Parliament does not come as a surprise as it stresses that

all internet traffic should be treated equally, without discrimination, restriction or interference, irrespective of its sender, receiver, type, content, device, service or application.

In these dark times for net neutrality, one can only hope for the right balance between net neutrality and reasonable traffic management to be found.

And as Christmas is getting closer, one can also wish for the EU and the USA to ultimately adopt compatible rules on guaranteeing an open internet. As announced recently, Barack Obama is taking strong positions in favour of Net Neutrality and is calling on the Federal Communications Commission (FCC) to adopt rules to prevent ISPs from blocking and slowing down content.

References   [ + ]

1. Copyright by EFF-Graphics under the Creative Commons Attribution 3.0 Unported
2. A Best Effort Internet refers to the model of the Internet that does not differentiate between ‘levels’ of content providers. All web authors, large and small, enjoy the same ability to produce content or services that can, via the Internet reach an audience / customer base.

The ‘EU Google Tax’ – A very unpromising work in progress?

Let's tax everything.

Let’s tax Googleverything.

Once upon a time or, more precisely, about four years ago, a group of German newspaper publishers filed several antitrust complaints due to the use, in Google news service and search results, of article snippets from their publications.

One would think that the additional free traffic directed by Google, associated to this inclusion of short snippets from their stories, would actually be beneficial for publishers, generating more audience, making their content more valuable, and enabling them to sell more advertising.

It might be quite an accurate consideration but, as it seems, completely irrelevant because the main issue at stake was apparently reduced to the argument that Google was making money out of it:

Hans-Joachim Fuhrmann, a spokesman for the German Newspaper Publishers Association, said the Web sites of all German newspapers and magazines together made 100 million euros, or $143 million, in ad revenue, while Google generated 1.2 billion euros from search advertising in Germany. “Google says it brings us traffic, but the problem is that Google earns billions, and we earn nothing,” Mr. Fuhrmann said.

Although many, in fact, failed to understand how short excerpts shown as part of search results can be detrimental to newspapers publishers, last year, the German Parliament actually approved a new kind of copyright to protect online journalism and, consequently, subjected the presentation of news snippets and linking to the source to a licensing fee.

The law, better known as “ancillary copyright for press publishers” or “Leistungsschutzrecht für Presseverleger”, establishes that publishers have the exclusive right to commercialize their products or parts thereof. The law is intended to be particularly applicable to situations where companies commercially use third party content.

Therefore, a commercial aggregator or a search engine will not be able to aggregate quotations and links of journalistic articles unless they have received previous and explicit authorization. However, as this is intended to be a proportionate solution (?), the use of single words or very small text excerpts is allowed.

The main goal to be achieved is to enable publishers to receive an appropriate contribution for their content being promoted, for free, elsewhere than their websites.

Anyway, recently, the very same German publishers filed an antitrust complaint with the German Federal Cartel Office. Allegedly, due to Google’s dominance on the search engine German market, publishers were forced to agree to let Google use the snippets and links for free.

In parallel, based on the abovementioned German law, they filed as well a copyright request of compensation with the Copyright Arbitration Board of the German Patent and Trade Mark Office, demanding Google to pay them 11% of its gross worldwide revenue on any search that results in Google showing a snippet of their content.

Well, this could have been just like any regular competition or copyright case. Except, for its ludicrous details, it was not.

To start with, no advertising is displayed in the Google News service. Moreover, publishers do not have to be on Google at all. But, despite being able to ‘opt-out’, without any further consequences, the same publishers didn’t remove themselves from Google’s search. Indeed, Google has already ensured that publishers opting out of Google News won’t have their content removed from its search results. In addition, it has been demonstrated that publishers actually use every tool put at their disposal by Google, including Google Webmaster Tools and SEO (Search Engine Optimization) techniques, in order to achieve a better ranking position in search results.

This all saga is not so vaguely reminiscent of a Belgian comic case, from 2006, where, following the complaint of a group of publishers, alleging that Google was infringing on their copyrights by linking to their newspaper articles, Google removed the links referring to content of those newspapers. However, due to the (expected) traffic drop which ensued, those publishers asked to be referenced again on the search engine results. (For more details, see here and here)

As the story seems to repeat itself, the abovementioned antitrust complaint was ultimately rejected as inconclusive, no sufficient grounds having been found to justify an investigation.

In addition, Google decided to remove existent snippets and not to use any further news snippets referring to publications of those publishers. One would expect that the publishers would be satisfied with this initiative but, instead, they dramatically qualified it as “blackmail.”

Confused? Don’t worry. Apparently, this does not have to make any sense at all… And it gets worse!

Not having news snippets referring to their websites showing on Google News obviously led those publishers to a commercial disadvantage comparing to other news websites, which snippets continued appearing in the search results. In this context, and against all odds, the same old group of publishers announced the intention to grant Google a free license to use those kind of excerpts.

This has lead us to an interesting outcome, indeed.

So we now have a German law which allows publishers to collect license fees from news aggregators and search engines which use snippets of their content.

This law was primarily intended to address the specific concerns of a group of German publishers regarding Google market power and to regulate the particular situation of the snippets displayed on Google News.

But it turns out that, after all, Google will benefit from a preferential treatment precisely due to its dominant position in the EU market.

One would innocently expect that Member States could learn from each other mistakes…

Well, against our best expectations, that it is not the case. Spain has just approved a new copyright law, which is polemic at many levels, namely because it has created a brand new ‘inalienable right’ (derecho irrenunciable) for news publishers.

In practice, it means that publishers won’t be able to refuse the use of “non-significant fragments of their articles” by third parties. However, it creates a compulsory license to compensate them for that use, which means that copyrights holders can’t decide to allow the use of content for free and, therefore, completely overrides any concept of fair use, like Creative Commons-type of licenses.

Thus said, one optimistic would still hope that the same mistake wouldn’t be emulated at the EU level.

However, when Günther Oettinger, the next Digital Economy and Society EU Commissioner – considering his previous demonstration of obliviousness regarding Internet in general – takes a stance on the issue, one cannot help to start worrying.

Indeed, as reported by Julia Red (the Pirate Party MEP), Oettinger recent statements were as follows:

When Google is taking intellectual works from within the EU and using them, then the EU has to protect those works and demand a tax from Google.

I am really not sure that a similar tax is the way forward for the EU copyright reform in the digital age we are living in. The reform shouldn’t be aimed to target companies according to their position on the EU market.

To begin with, I am afraid that the whole aim of copyright laws – produce incentive to creativeness – is somehow going amiss and that they will end up being used to protect businesses that refuse or are just unable to adapt their strategies to the fast-changing technological reality.

It is always very frustrating for any legal practitioner to deal with laws that are no longer suitable for the reality they are intended to be applicable to. But it is even more exasperating to deal with laws that were never appropriate to the situation which is intended to be regulated. To legislate in the new era with an old mindset is definitely not the way to go forward.

Moreover, I strongly believe that an extension of the existent copyright laws, namely regarding links, is not compatible with the spirit of openness that characterizes the Web and is mostly a reflection of the interest of publishers who have failed to achieve successful business models on the Internet. Taxing links might most likely lead to the smashing of the very basic premise of the Web.

Furthermore, I am worried that this might be the beginning of the end of freedom and access to unlimited information that characterizes the Internet as we know it and that it will stifle innovation brought by successful entrepreneurship.

Last but not the least, all my criticism aside, considering the German example, how ironic would it be that, in the midst of all the concerns surrounding the dominant position of Google in the EU market, and in all the efforts deployed to fracture its market power, its dominant position would end up being strengthened?

The match of the year: Right to be Forgotten vs Right to know

Round 1, Fight!

Round 1, Fight!

As it is well-known, the ‘right to be forgotten’ ruling extended the possibilities foreseen under the current EU Data Protection Directive for data subjects to exercise their rights to erasure of data and to object to personal data processing with regard to search engine services providers, which were deemed as controllers.

Therefore, facing a deletion request, search engines will have to decide on the balance of the rights at stake, namely freedom of expression and right to privacy, weighing up whether it is in the public interest for the information indexed in its search results to remain.

From the very beginning, the public opinion thrived both with enthusiasm and concern. The main question was: how would the decision be enforced? Isn’t the removal of links to legal and accurate information damaging for freedom of speech and right to access to the information? The debate was mostly vivacious between free speech advocates and privacy campaigners and hasn’t faded away with the course of time. The firsts insist that it will lead to a whitewashing of the past, whereas the latter uphold that it will enable individuals to limit the visibility of some personal information.

Google, despite affirming that the enforcement of the ruling could hamper free speech, alerting for the potential abuse of those looking for the deletion of important information and complaining that the ruling requirements for conformity were vague and subjective, started dealing (efficiently?) with the astonishing amount of requests for suppression of links received, rejecting some and admitting others.

In fact, Google says it has received approximately 143,000 requests, related to 491,000 links, to take down links in the last five months, involving everything from serious criminal records to embarrassing photos and negative press stories. Considering the data revealed by Google itself, the company has refused about 30 per cent of demands and about 50 per cent were taken down. According to its online transparency report, Google has removed more links to content on Facebook from its search results than from any other site. In this regard, Reputation VIP — the company that provided Forget.me, the first “Right To Be Forgotten” Removal Service – outlined that, ironically, most requests do not refer to unflattering or inaccurate web pages written by third parties, but, instead, to content authored by the requestor.

Google even set up an advisory committee to handle the requests. This council is headed by the company’s executive chairman, Eric Schmidt, and chief legal officer, David Drummond, and includes academics, technologists, legal experts and a journalist.

Most recently, Google decided to launch a public debate regarding the balance to be achieved between a person’s right to be forgotten and the public’s right to information. To that end, it organized a grand tour of hearings across Europe and has been on the road for about a month now.

The good intentions beneath this initiative failed to convince everyone. For instance, Isabelle Falque-Pierrotin, who heads the Article 29 Working Party, which gathers all 28 EU national data protection authorities, didn’t hesitate to share her scepticism about the Google initiative, which she described as part of a “PR war”:

Google is trying to set the terms of the debate. They want to be seen as being open and virtuous, but they handpicked the members of the council, will control who is in the audience, and what comes out of the meetings.

Although I do not share such a pessimist viewpoint of the initiative, I actually also have some doubts regarding the openness and transparency that it is intended. Indeed, when the public debate was firstly announced, I expected that it would allow for a better understanding Google’s current processes for dealing with requests. But, as far as I am aware, hearings have centred themselves in abstract and rather philosophical discussions.

Considering the ongoing negotiations regarding the EU data protection reform, already well advanced, the question which should be asked is: how much could the ruling and Google’s efforts in fact influence the direction of the discussions?

According to the European Commission’s initial proposal, the right to be forgotten would be built on the right to erasure of personal data and the right to object to data processing operations, which already exist under the current Data Protection Directive. Therefore, the data subject could exercise the right against the original data controller when and if: the data is no longer necessary; consent is withdrawn or when the storage period has expired; the data subject objects to the processing on specified grounds; or the processing is no longer valid on some other ground. Freedom of expression was among the exemptions foreseen.

The European Parliament was quite favourable to this proposal, having voted its opinion  last spring. However, it ensured that the right could also be exercised directly against third parties and the possibility to exercise the right following an order by a court or regulatory authority.

The Council of the European Union had already discussed the issue before but decided to suspend the respective debates in order to wait for the CJEU’s ruling. However, negotiations regarding other issues of the reform kept going and Member States even agreed on partial general approach since then.

An afterwards statement issued by the Italian Presidency made clear that the provision concerning the right to erasure would take into account principles set out by the CJEU. Indeed, the revised version issued recently left no doubt about it.

I thought this utterly confusing as it is for the Council of the European Union and for the European Parliament, as co-legislators, to make the law as it will stand in the future and for the CJEU to interpret the law as it exists. To take into account the judicial interpretation of the law that we are about to replace for the definition of the upcoming legislation is, in my opinion, quite puzzling. The ruling should not dictate the content or drafting of the future Regulation.

Nevertheless, something has to be done regarding the enforcement of the ruling. As things stand at the moment, it has been up to Google to determine the balance between the conflicting interests at stake. The criteria as defined by the CJEU are undoubtedly insufficient.

And if the ruling shall be taken into account regarding the upcoming legislation regarding anything, it most certainly has to address the scope of the right to be forgotten, the grounds on which it can be exercised and the need to balance this right with the freedom of information, as the judgement itself doesn’t establish with rigour how it shall be applied in practice.

In this context, it must be noted that the regulation has a horizontal nature and, thus, is intended to be applied to all controllers, independently of their nature. Search engines are not the specific aim of the future legislation although, as controllers, they are covered by its scope.

Regarding the scope, one may wonder if the distinction made by the European Commission between personal data which have been initially disclosed or uploaded by the data subject and the personal data which have been disclosed by third-parties will be kept.

Moreover, as it seems that there is no doubt that search engines – now considered as controllers – may receive deletion requests, it is important to clarify what about providers of social media, as Facebook, for instance, where it is possible to argue that the processing is based on consent or a contract.

As for the grounds on which the right can be exercised, I think it won’t be easy to determine who will be required to conduct the assessment in order to consider if the initially lawful processing of accurate data became unnecessary, inadequate, irrelevant or no longer relevant, or excessive in the light of the purposes for which they were collected or processed and of the time it has elapsed. Who is better suited for that role: search engines or the first controller?

In this context, one cannot assume that, if the initial processing is lawful, that the second processing is also legal. There might be cases where both might have reached different outcomes of lawfulness. What then?

Furthermore, should requests for deletion be addressed directly to the controller? Should they be addressed, instead, to the supervisory authority? Or to the competent courts? And if so, which court would be the competent one?

In addition, should the data subject have the right to choose any of the controllers to exercise the right to be forgotten and erasure? I believe that, at least theoretically, it should be possible for the data subject to exercise the rights against the processing carried out by the search engine before, after or independently from exercising the same or other rights against the original controller. But one should bear in mind that it is quite unrealistic to ask operators of search engines to track information and replication of data across the web.

As we can see, many questions are yet to find their answers.

The most popular is:

How will be the right to the protection or personal data fairly articulated with the right to freedom of expression?

Understandably, certain Member States have shown legitimate concerns regarding the freedom of expression and the interest of the public at large to have access to information, which may end up being underweight in the balancing process. So the debates are currently ongoing.

One of the big issues at stake is that, according to the spirit of the founding treaties, the conciliation of the right to the protection of personal data and the freedom of expression should remain in Member States’ legislative power. This implies that the European co-legislative institutions, the Council of the European Union and the European Parliament, are not entitled to regulate in detail this matter. However, if it is up to Member States to reconcile the two potentially conflicting rights, nor harmonization nor a unified application of law is ensured.

In this context, it will be important to delineate the concept of ‘public interest’ and ‘public figure’, which scope is not satisfactorily developed in data protection due to the swiftly evolved digital era.

Moreover, it will be important to establish that bloggers and individuals generally expressing themselves online fall within the scope of the ‘freedom of expression’ exception, even if they are not professional journalists. After all, article 11 of the Charter of Fundamental Rights of the European Union establishes that everyone has the right to freedom of expression, including the freedom to hold opinions and to receive and impart information and ideas, establishing the freedom and pluralism of the media.

On another level, and as it is well-known, Google has been systematically alerting websites when it cuts links to their pages from results presented based on searches for a person’s name, which is in line with the European Commission’s proposal. But should search engines be barred to inform publishers, as Google has been doing, when articles have been delisted from search results? Are they cases where it would be appropriate to involve a publisher? Which ones?

These notifications are mostly problematical due to the possibility of republication, which could cause additional harm or distress for the data subject. And indeed, it often leads to a republication of a version which indicates what URLs are being removed from the search index.

In my opinion, it is preferable for the data subject that the search engine, as a second controller, contacts the controller which has firstly published the information (preliminary controller), as, otherwise, it might not be always easy to establish the correct balance.

In parallel, Google has unilaterally restricted the deletion of internet links to European websites only, for instance Google.es, Google.de, Google.uk… Well, you get the idea… But shouldn’t the removal be global, considering the very nature of Internet? Shouldn’t links be removed from all versions of Google, such as Google.com? This is particularly important considering that most of European users of the search engine use local domains, rather than referring to google.com.

The Justice and Home Affairs Council gathered in Luxembourg, on the 10th of October, to discuss the regulation and directive. A partial general approach on chapter IV of the general data protection regulation, which deals with the obligations for data controllers and processors, was agreed. There is, nevertheless, still plenty to be agreed on, so one may wonder if the deadline established by the incoming European Commission President Jean-Claude Juncker for the end of negotiations – within six months of the commission starting work – will be enforceable.

Meanwhile, the Article 29 Working Party is preparing some guidelines which will set out a common record to deal with different types of appeals coming in from citizens. To that end, it has met with media and search engine companies, Google, Microsoft and Yahoo, to gather their views on how to strike a balance between the freedom of information and privacy. The guidelines are expected to be finalized by the end of November.

Considering the current state of play, let’s hope that some thorny questions would have been answered by then…

The Google Affair: Forget Me, Forget Me Not – Part II

I can forget you, you know?

I can forget you, you know?

Bad pictures, dire comments, past scandals. The internet never seems to forget. How convenient would be the possibility to suppress any registry of events of the past, which might adversely affect our honour and dignity or simply expose our private life in an undesirable way?

According to the recent ruling of the ECJ, someone wishing to delete personal information from a search engine’ index will have to request so to the search engines services provider.

This decision is undoubtedly good news to those who would like to suppress information about them from the internet, but is likely to cause problems in practice.

It is unquestionable that people have a right to privacy, and that that privacy extends to information about them. Thus they have the right to control their personal data and can ask for its deletion when no longer have interest in its processing or storage and there is no legitimate interest in being kept by a data controller.

The issues regarding the qualification of search engines services providers as ‘data controllers’ have already been raised here and here. Unfortunately, our concerns don’t end there.

According to this decision, search engines have to deal with individual complaints or they can be challenged before judicial courts or a supervisory authority.

In order to implement the decision, Google had to devise mechanisms (an online form available on its website) in order to receive requests for link removal and was submerged by the amount of requests for personal data deletion received from nationals of the 28 countries of the EU. This has been representing major additional administrative burden for Google and will affect as well all other web intermediaries, as the repercussions of this ruling extend well beyond Google.

Then, search engine services providers will decide on the balance of the rights at stake, weighing up whether it is in the public interest for that information to remain.

Does it make any sense to establish this principle when there is no evident and easy answer about what is privacy nowadays or where do we draw the line between what belongs exclusively to private sphere and what belongs to the public domain?

It is a fact that Google have been removing links which infringe copyrights content on demand of copyrights holders. In those cases, however, there is no individual assessment and the process is mostly automated, which is a very different scenario from what the ruling entails. Indeed, each request would have to be considered individually and demands an appraisal that is not fit for a search engine. Thus, complying with this ruling could end up very costly because making this kind of assessment is not possible through algorithms.

As much as I can agree with the motivation of the ruling, this just doesn’t make any sense. The ECJ thus passes the responsibility to find the right balance over to private entities, businesses, whose primordial concern is profits, although they have neither the expertise nor the legitimacy to act as a legal authority. As a general principle, deletion of websites, or search links, should be decided by a legitimate entity, entitled with public authority, ultimately a court.

Anyway, pertinent questions arise regarding the interpretation of the rules set out in the judgement. What exactly is a public figure? What is deemed to be qualified as public interest? How long has to pass before personal data is no longer relevant? How can a search engine determine if data is inaccurate or its processing is excessive or disproportionate? How will the rights of the publisher be safeguarded in the internal process of a private company?

In the absence of any rigorous criteria to balance the rights of the data subject against the search engine’s economic interests and the public interest, search engine services providers lack a precise test to apply when assessing requests from data subjects for removing links to websites containing their personal data.

The advisory committee set by Google might not be the most adequate solution. The agreement reached by national data protection authorities to form a subcommittee establish uniform handling of such requests is much welcome.

In order to avoid any likelihood of liability for breaching data protection law and of unlawful processing of data, search engine services providers might prudently remove links, despite any public interest in its disclosure, rather than consider the balance of rights in every request. And who would possibly blame them?

The most evident and worrying outcome is that our facility to find information about other individuals is substantially reduced.

But it leaves some room for other discrepancies as well. Will the links deleted from the specific index created especially for a country (e.g. specific national language required) be available within searches operated in other countries? Or only search engines with no connection to the EU will be able to serve the results?

We might be dangerously heading toward a tiered and fragmented internet, with searches results in Europe being less complete than elsewhere. What about the free and open internet, then?

And what about managing the potential interests of third parties, also concerned by the deleted information, who might have as well personal data published but, on the contrary, wish to be easily found online through the search engine set of results?

The Advocate General already alerted 1)Paragraph 134 of the Opinion that suppression of legitimate public domain information would amount to censorship . For the sake of the full access to information and freedom of expression, it is imperative that Google should remain a neutral platform. To that aim, empowering a search engine service provider with censor competences is a remotely desirable result.

The main search engines in Europe already met, in Brussels, with the Article 29 Working Party, which brings together data protection authorities from across the EU, which intends to issue some EU-wide guidelines in order to achieve a unified implementation of the ruling.

Considering the possible scenarios foreseen, these guidelines are very much welcomed. However, it just seems that we are now trying to correct a system that was wrongly built from scratch. Indeed, according to its press release, DPAs asked, for instance, the search engines to explain their de-listing process and what were the criteria applied to the balancing process of their economic interest, the public interest in accessing information and the right of the person who wants the search results de-listed.

Now Google has planned public hearings, in an alleged quest for transparency, in order to boost a debate on the implementation of the ruling.

More recently, at the WP29 Plenary meeting of 16 and 17 September, the European data protection authorities decided to put in place a network of contact persons in order to develop common case – handling criteria to handle complaints presented to the data protection authorities, resulting from search engines’ refusals to “de-list” links from their results.

Now that the confusion has started, one may wonder where will all this end?

References   [ + ]

1. Paragraph 134 of the Opinion

Open Competition or the Dominant Undertaking Crusade

Google vs EU?

Google vs EU?

Google is undergoing a rough time in the European Union, being pressured on diverse fronts. There’s the famous ECJ ruling, and the polemics surrounding the collecting of data by Street View cars. Some think that the company should be broken up. Others see it as a threat to their sovereignty. But maybe it is all about fear, as admitted by Mathias Döpfner, chief executive of Axel Springer, a German publishing giant, in an open letter to Eric Schmidt, Google’s executive chairman. Some worry that big companies will be disincentive to invest in Europe.

Thus said, what is the fuss now?

Well, actually it is an already an old question…Over the years, Google has been facing increasing criticism regarding its search business’ dominant position in Europe.

Google’s market share in Europe is up to 90%, so there is no doubt that it has a dominant position in the European market. According to settled case law of the CJEU, dominance is a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, its customers and ultimately of the consumers.1)See Case 27/76 United Brands Company and United Brands Continentaal BV v Commission [1978] ECR 207, paragraph 65, and Case 85/76 Hoffmann-La Roche & Co. AG v Commission (1979) ECR 461, paragraph 38

It is a well accepted principle that, having reached a dominant position, the concerned undertaking has a special responsibility not to allow its conduct to impair genuine undistorted competition on the market.2)See Case 322/81Michelin, ECR 3461 (1983) paragraph 57

Therefore, a dominant position is not in itself illegal. However, according to article 102 of the Treaty on the Functioning of the European Union (TFEU), if an undertaking exploits this position to eliminate competition, it is considered be an abuse, which is deemed to be an anti-competitive conduct.

One must be well aware that a competitive market is desirable for the competitive quality and price it offers, the choice it allows and the innovation it brings. The ultimate beneficiary of competition is the consumer of a good or a service, i.e., all of us. It might not come as a surprise that less successful competitors might try to reduce the market share of a dominant undertaking in their favour.  That is what competing is all about: to try to be better than your competitors, try to be the best at something. But one should expect that they will try to do so through competition! One should not be wary of a dominant position simply due to to its huge market share or to the amount of power it entails, although it shall not be left unrestrained either. A successful company shall not be ‘punished’ or persecuted for its success. The legitimacy of the dominant undertaking’ activities shall always be accessed according to the consumer’s interests.

Back in 2010, the European Commission opened an antitrust investigation into allegations that Google Inc. has abused a dominant market position, in violation of European Union rules (Article 102 TFEU), following 18 (eighteen) complaints presented by its competitors regarding Google’s online search and search advertising.

In short, despite the four areas of concern raised by European Commission, the focus of the case was Google’s vertical search results and the extent to which it favoured its own specialized search services, reducing the visibility of results from competing sites.

Late February, the European Commission announced (here) a settlement proposal from Google in the context of the ongoing antitrust investigation – the third from Google after the previous two were criticized as not going far enough – which it deemed satisfactory.

In this proposal, Google has committed to visibly display links of the services of three competitors, selected through an objective method, whenever it promotes its own specialized search services on its web page following a search query. Some of these links would require the competitors to pay Google.3)You can better understand the proposal from the screenshots as shown here

This proposal received a strong public backlash, namely, of course, from Google’s competitors, apparently very concerned with the users’ interest which is, as previously mentioned in the text, a valid point, however not as convincing as intended, coming as it comes from less successful competitors.

For instance, the FairSearch group, which Microsoft backs, argued that

[it]requires rivals to pay Google for placement similar to that of Google’s own material, undercutting the ability of other to compete and provide consumer choice. This will be done through an auction mechanism that requires participating companies to hand the vast majority of their profits to Google.

Several French and German publishers and companies, among which Axel Springer, created an initiative called the ‘Open Internet Project’, insisting that the commitments proposed by Google to bring this investigation to an end are not sufficient to safeguard a competitive online market. The claims can be accessed on the group’s website.

In June, the European Commission invited complainants to react to Google’s proposal and received a significant negative feedback from press publishers, pressing the European Commission to reject Google’s proposals and proceed to a formal charge with infringement, stating as follows:

(…) the most prominent areas of any search results pages would be reserved for Google’s own services, independent of their quality, while all rival services have to accept inferior visibility even if they are far more relevant to a search query.

And they added:

The only relevant “commitment” is the addition of three Rival Links’ whenever Google puts links to its own monetized services first. However, in the most relevant commercial areas rivals will have to bid for a Rival Link in an auction and pay Google the highest price for a click. As a result, websites would not be ranked by relevance anymore but primarily according to the price they are willing to pay Google. As a new type of ad, Rival Links are not a concession but a new revenue stream for Google. As rivals could always bid for AdWords-ads, their situation is not improved.

No one can blame the settlement’s critics for any lack of coherence as these reactions are in line with those of lead complainant Foundem, who sustained that the proposed rival links will consume the majority of rivals’ profits and will not be selected according to relevance, merit, or quality.

Eric Schmidt, Executive Chairman of Google, recently addressed this issue, under the title ‘We built Google for users, not websites’, stating:

To date, no regulator has objected to Google giving people direct answers to their questions for the simple reason that it is better for users.

Facing the described context, the European Commission might have to seek to obtain more concessions from Google.

As the current Commission’s will be replaced in November, it is very unlikely that Joaquín Almunia, Vice-President of the European Commission and Commissioner responsible for competition, will be able to attain a final consensus within the Commission by then and the decision will most certainly be postponed in order to be taken under the next Commission.

Thus being said, Google is obviously trying to avoid formal charges. Of course it has no interest in having to pay a high fine nor damaging its reputation. But one might wonder if any compromise will ever be sufficient for its competitors.

From the several points raised by complainants, it seems sometimes that the intention is to artificially propel traffic to websites that compete with Google. That should not Google’s obligation. That wouldn’t even be fair for Google, nor in the best interests of consumers. And it would imply a senseless and unjustified advantage for competitors at the expenses of Google and, ultimately, consumers.

What must be ensured is the effectiveness of competition on the merits in the areas of specialized search and search advertising and, more importantly, the desirable effectiveness of the principle of Open Internet. The principle of Open Internet is defined as the enabling of Internet users to access the content, applications and services of their choice. It is therefore closely linked to the principle of Net Neutrality, meaning the ability for consumers to access and distribute information or run applications and services of their choice.

But an Open Internet also closely linked to competition among network, services and content providers, as it implies that each provider have the opportunity to test the value of its projects in the online marketplace. The door shall remain wide open for the next big company that will shake the online world. One must not forget that back in the 90’s, in the heydays of the internet, search engines as AltaVista and Yahoo were as popular as Google is now. Google outran them due to users’ preferences. And it must be guaranteed that consumers will be able to know about and use other services in the future if they prefer so.

Therefore, as competition and the principles of an Open Internet and Net Neutrality serve and benefit ultimately the consumers, competitors are not the main aim in themselves. Although they undeniably benefit from that protection, any confusion between the interests of consumers and of competitors shall be avoided.

Google shall not be prevented from improving its own services because its competitors are not as successful or are unable to keep up. So the suggestion of German justice minister Heiko Maas for Google to reveal its ranking algorithm in order to be more transparent appears as senseless.

What must be guaranteed is that users are informed of the existence of the competing websites, their relevance to the search, and are given the possibility to access them, thus providing users with a genuine choice between competing services. This must be the core of the European Commission’s assessment regarding the further concessions it might demand from Google in the future.

References   [ + ]

1. See Case 27/76 United Brands Company and United Brands Continentaal BV v Commission [1978] ECR 207, paragraph 65, and Case 85/76 Hoffmann-La Roche & Co. AG v Commission (1979) ECR 461, paragraph 38
2. See Case 322/81Michelin, ECR 3461 (1983) paragraph 57
3. You can better understand the proposal from the screenshots as shown here
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