On Dec. 8, 2022, the European Court of Justice set forth an opinion requiring Google to remove false information from being indexed in Google search results. Individuals in Europe will now be able to request removal of URLs containing the false information and, if the requester is able to prove that the information is “manifestly inaccurate” (as stated in the opinion), the search engine must remove the content or face significant financial penalties. Specifically, the new EU law will require violators to pay fines of either 4 percent of global revenue or up to 20 million euros (whichever is greater) as a penalty for non-compliance.
De-Referencing Is Now Mandatory
In the state of affairs prior to the judgment, a 2014 non-binding advisory opinion guided Google’s removal of false information in the EU. A summary of the opinion stated that the search engine could voluntarily agree to remove false information when requested, but that it should:
“For its part…carry out checks to confirm or otherwise the merits of the request that are within its capabilities, by contacting, where possible, the publisher of the referenced web page, and therefore to decide whether or not to grant the request for de-referencing.”
Now, following the December 8th opinion, de-referencing is mandatory, although it is unclear how Google will review removal requests or enforce this new standard.
The Right To Be Forgotten
Google’s new obligation to remove false information from the search results of European citizens is the latest in a long procession of cases that balances personal data protection and privacy rights with freedom of information and expression across national borders. Residents of the European Union already hold unique protections related to “the right to be forgotten” under the General Data Protection Regulation (“GDPR”). Since 2014, Google has reported removing 5.28 million URLs pursuant to requests related to “right to be forgotten.” Nevertheless, Google has largely refrained from assessing the truth or falsity of content indexed in its search results, instead encouraging users to seek an order from a court to remove damaging content.
Historically, Google has removed damaging content outside the scope of a court order in limited circumstances, such as the removal of revenge porn or content which violates intellectual property rights. These removal requests are processed through a series of webforms, often inconsistently, across various departments and through a combination of both bot-led and in-person reviews. The steep financial penalties associated with noncompliance seem to endeavor to discourage inconsistent reviews and may ultimately play in favor of people requesting removals.
Where Do These New Rules Apply?
In the coming months and years, it remains to be seen what companies with global reach will do to handle the diversity of legal requirements involved in managing potentially false information. For example, where companies are headquartered in the EU, those businesses must offer the protections to all users regardless of location. Where companies merely serve users within the EU, the rules apply to “data subjects…in the Union.” Unless the U.S. follows suit with the EU in legally mandating the de-indexing of false content, the costs of implementing such policies may outweigh the perceived benefits to business.
Of course, U.S.-based users of online platforms retain other legal methods of removing unwanted and inaccurate content from online platforms, as previously covered by KJK Internet Defamation and Content Removal Attorneys. For more information or to discuss further, please contact Alexandra Arko at (ALA@kjk.com; 216.716.5642)