Archive for the 'freedom of expression' Category

9 Reasons Why a ‘Right to be Forgotten’ is Really Wrong

Thursday, December 8th, 2011

The European Commission concept proposal for a data protection regulation contains the so-called right to be forgotten in Article 15. This is not a surprise but the way it has been drafted is quite terrible as I will try to explain below.

Commissioner Viviane Reding made a right to be forgotten into one of the central themes of the privacy directive‘s review of the last two years and her plans to modernize the existing legal framework for the processing of personal data in the EU. While there are some valuable improvements to the existing data protection rules in the EC’s concept proposal, this right to be forgotten is amongst the worst legal inventions I have ever encountered. Below I first shortly discuss the proposal and give 9 reasons why it is really wrong and why it should be abolished.

The basic principle of the ‘right to be forgotten’ is that data subjects can ask for deletion of personal data. This right to be forgotten is an extension of the existing right of erasure with regard to personal data processing in Article 12 of the Privacy Directive, and specifically targets personal data which have been made public, such as the name or picture of a natural person on a discussion forum. It also extends to links to publications containing personal data, for instance in search engines. The proposed right in Article 15 reads as follows:

Article 15  Right to be forgotten and to erasure

1. The data subject shall have the right to obtain from the controller the erasure of personal data relating to them and the abstention from further dissemination of such data where:

(a) the data are no longer necessary in relation to the purposes for which the data are collected or otherwise processed; or

(b) the data subject withdraws consent on which the processing is based according to Article 5(1)(a), or when the storage period consented to has expired; or

(c) the data subject objects to the processing of personal data pursuant to Article 17; or

(d) their processing otherwise does not comply with this Regulation.

This right shall apply especially in relation to personal data which are made available by the data subject while he or she was a child.

2. Where the controller referred to in paragraph 1 has made the data public, it shall in particular ensure the erasure of any public Internet link to, copy of, or replication of the personal data relating to the data subject contained in any publicly available communication service which allows or facilitates the search of or access to this personal data.

3. The controller shall carry out the erasure without delay, except to the extent that the retention of the personal data is necessary:

(a) for exercising the right of freedom of expression in accordance with Article 79; or

(b) for historical, statistical and scientific research purposes in accordance with Article 83; or

(c) for compliance with a legal obligation to retain the data by Union or Member State law to which the controller is subject; this law shall meet an objective of public interest, respect the essence of the right to the protection of personal data and be proportionate to the legitimate aim pursued; or

(d) in the cases referred to in paragraph 4.

4. Instead of erasure, the controller shall restrict processing of personal data where:

(a) their accuracy is contested by the data subject, for a period enabling the controller to verify the accuracy of the data

(b) the controller no longer needs them for the accomplishment of its task but they have to be maintained for purposes of proof;

(c) the processing is unlawful and the data subject opposes their erasure and requests the restriction of their use instead;

(d) the data subject requests to transmit the personal data into another automated processing system in accordance with Article 16(2).

5. Personal data referred to in paragraph 4 may, with the exception of storage, only be processed for purposes of proof, or with the data subject’s consent, or for the protection of the rights of another natural or legal person or for an objective of public interest.

6. Where processing of personal data is restricted pursuant to paragraph 4, the controller shall inform the data subject before lifting the restriction on processing.

7. The controller shall implement mechanisms to ensure that the time limits established for the erasure of personal data and for a periodic review of the need for the storage of the data are observed.

8. Where the erasure is carried out, the controller shall not otherwise process such personal data.

9. The Commission shall be empowered to adopt delegated acts in accordance with Article 86 for the purpose of further specifying:

(a) the criteria and requirements for the application of paragraph 1 for specific sectors and in specific data processing situations;

(b) the criteria for deleting public Internet links, copies or replications of personal data from publicly available communication service as referred to in paragraph 2;

(c) the criteria and conditions as regards personal data identified for the purpose of restricting its processing as referred to in paragraph 4.

In case that some party does not comply with the right to be forgotten, Article 79 provides for a possibly hefty fine by Data Protection Authorities:

Article 79 Administrative sanctions

[...]

3. The supervisory authority shall impose a fine between 500 EUR and 600 000 EUR, or in case of an enterprise up to 3 % of its annual worldwide turnover, to anyone who, intentionally or negligently

[...]

(c) does not comply with the right to be forgotten  or to erasure, or fails to put mechanisms in place to ensure that the time limits  are observed or does not erase any public Internet link to, copy of, or replication of the personal data relating to the data subject contained in a publicly available communication service pursuant Article 15.

So what is wrong about this right to be forgotten ( if that isn’t already clear from reading the text of the proposal)? Let me list 9 reasons why this proposal looks like a terrible idea:

1. A right to be forgotten with regard to public information is anti-historical. The idea is that the further dissemination of publications of personal data becomes problematic because they have merely historical value. In very specific cases this can arguably make sense. In some European jurisdictions, Germany for instance, there is what could be called a ‘interest to be forgotten’ for criminals that have had their share of punishment and need to reintegrate into society. But careful balancing needs to take place in such contexts as well. The regulation contains a reference to processing for historical purposes, for instance in recital 46, but this reference is way too vague.

2. A right to be forgotten actually doesn’t exist. The existing right to erasure was never absolute in the first place. It is merely the expression of the general principle of purpose limitation that underlies many of the data protection rules. If a company of government agency processes personal data about you, it needs a legitimate reason to do that. If they no longer have that reason it follows they need to stop processing the data and the ‘right to erasure’ gives you a specific legal provision to ask them to do so. To call this a right is an overstatement and gives the wrong impression to those that want information deleted as well as those that would like to keep it public. To improve data protection law through the addition of welcome overstatements is quite generally misguided. There are arange of other provisions in the proposal and exieting rules that suffer the same deficit, such as the prohibition of automated decision making.

3. A right to be forgotten wrongly treats freedom of expression as an exception in relation to the right to privacy. Article 15 states the right to be forgotten as the rule. The interest of communicating about others publicly, which notably includes public figures, celebrities, etc…, is tailored as an exception. Under the proposal, the burden of proof is placed on the one that publishes information and one needs to defend engaging in such communications on the basis that they are necessary to exercise one’s right to free speech, instead of justified. From a European perspective, this does not respect the need to provide for a balance between the competing interests that are typically at stake. (Notably, from a U.S. perspective and the First Amendment, the proposal is even more problematic.) Relatedly, it strengthens the idea that there is a right to control one’s image and reputation in public and the idea that conflicts over making information about others public should be legally resolved through a system of granting rights to control over information flows. This is clearly a short-cut that oversimplifies the values that are at stake in the context of publicity of and about natural persons.

4. A right to be be forgotten will be a tool for censorship. It will strengthen those that want to censor the Web instead of helping those with justified claims to have their personal information removed. The right that is being created is a stick to hit with, the strength of which will heavily depend on the financial means to enter into a legal fight about prolonged publicity of personal information on the Internet. It will be used most effectively by those that have the strongest interest in cleaning up their reputation online.

5. A right to be forgotten strengthens the questionable role of data protection law in the context of public information and networked media. Notably, what is new in the proposal, in comparison with the existing right of erasure of personal data, is that it specifically targets public information. While data protection law has developed in reaction to the use of automated personal data processing systems for government, administrative, and business decision making, it has slowly but steadily extended into the realm of public information and the media, due to the open ended nature of its definitions and the lack of a proper restriction for the public information environment. Unfortunately, the new proposal does nothing to stop this extension of a priori legal regulation of making information about others public. The exception for the media and freedom of expression in Article 81 remains narrow and many of the rules still apply. It also leaves a problematic amount of space to the Member States to interpret the scope of the exception. It is unclear to what extent search engines, social networks, internet archives and non-professional Web publishers such as bloggers or social network users fall under the exception. Data protection law includes a range of rules and principles that apply to any processing of personal data. To apply this legal framework to the media and other contributors to the public information environment is like making journalistic ethics into actual legal rules. This legal prescription of fair treatment of others in public communications violates the principle of free speech.

6. A right to be forgotten as proposed is a frontal attack on linking, search and archiving. Article 15, second paragraph contains the heart of the attack on publicity that is being proposed in the new regulation. The idea is that data subjects should have a right to claim the removal of all sorts of links to ‘their’ personal data on the Internet. It is no surprise that linking and search are being targeted specifically. These services are fundamental to establishing robust publicity in an information environment characterized by abundance. While the provision does not explicitly establish obligations for third parties (not the source of the publication) such as search engines to remove links to personal information, it is important to realize that the regulation does not resolve whether these third parties can be considered controllers themselves.

7. The proposal includes the threat of a fine, which can go up to millions and millions of Euros. While a right to be forgotten does not actually exist and would be legally problematic due to competing fundamental legal principles, the threat of a hefty fine may help to bring it into existence in practice. The chilling effects of fining those that do not comply with the ‘right to be forgotten’ or can be considered negligent in this respect are predictable. Imagine running a blog in a way that extends what is traditionally considered as journalism. Or consider running an association, which tends to publish its proceedings of the yearly general assembly online in view of the value it attributes to transparency. Or consider running a music fan-site with a forum with discussions about concerts and related matters. Clearly, such publications will sometimes contain information related to others. Now consider receiving a letter of an attorney of a now public figure that wants to see information removed and points out you can be fined between 500 and 600.000 EURO if you would fail to defend the prolonged publication of the now historical information in question.

8. A right to be forgotten will chill publishers into restricting access to potentially controversial material. The provision, and the threat of a fine, will incentivize web publishers to limit access to controversial information for search engines. Web publishers can prevent running into claims of a right to be forgotten by restricting access for search engines to publications containing personal data, for instance by using robots.txt. Can this sometimes be a good idea? Perhaps, but clearly the information remains accessible for Web users, even though they may not find it so easily. Can this be a bad idea? Of course, it will incentivize Web publishers that would like to open up their offering as widely as possible to restrict its findability elsewhere, thereby producing a bias towards uncontroversial information in search engines and related services.

9. It is reactionary and fashionable. A right to be forgotten alligns with reactionary sentiments about new forms of publicty made possible by the Internet. If there is any support to be found for this right to be forgotten, it must be amongst those who consider the relative uncontrolled nature of such communications as a threat perse. In addition, European politicians may be charmed by the idea of showing their teeth and passing a provision that they understand as actually protecting people’s privacy online. Finally, a right to be forgotten! Hopefully, they will in time start to understand the highly problematic nature of this proposal.

PhD Thesis Submitted on Search Engine Freedom

Tuesday, November 22nd, 2011

Ten days ago, I submitted my PhD thesis:

‘Search Engine Freedom: On the implications of the right to freedom of expression for the legal governance of Web search engines’, Ph.D. thesis, Institute for Information Law, (submitted, November 2011).

I plan to start writing here again, after a long absence. The upcoming decision of the European Court of Justice in SABAM v. Tiscali coming Thursday will be a good moment to pick up. I plan to work things around a bit and make this blog less central to this website, but that will take some time.

My (Long) Take on the ECJ’s AG Opinion in the Google Adwords Cases

Friday, October 2nd, 2009

In its long awaited opinion in the French Google Adword cases about trade mark infringement of keyword advertising, the European Court of Justice’s Advocate General, the young Miguel Poiares Maduro, has concluded that the sale and use of keywords to trigger sponsored search results does not constitute infringement. In addition, the AG has tried to clarify the scope of intermediary liability regime from the Directive on Electronic Commerce as regards keyword advertising, hyperlinks and search engines, differentiating between third party liability for sponsored and natural results. There are several more cases about keyword advertising awaiting treatment by the ECJ. Hence, this opinion is the first in a series.

What is at stake?

The AG starts by rephrasing the questions as referred to the Court by the French Cour de Cassation as a larger question relating to the ability of end-users to use search engines to find information online:

5. The answer [to the questions before the Court] will determine the extent to which keywords corresponding to trade marks can be used outside the control of the proprietors of the trade marks. To put it differently: when you enter a keyword which corresponds to a trade mark, what can be given and what can you find in cyberspace?

This perspective – how much control should trademark law provide to the proprietors of trademarks to control communication more generally – remains dominant in the AG’s treatment of the legal issues involved in the three cases. The AG’s concern about the general communicative ecosystem, his critical discussion of the possible justification for trade mark protection to include keyword advertising or a contributory infringement doctrine, and most importantly the negative consequences for freedom of expression and freedom of commerce of extending protection come as a welcome surprise to me.

The line of reasoning with regard to trademark law

To structure his analysis, the AG discerns two uses of keywords by Google which correspond to trade marks in the Google Adwords system. The first is allowing advertisers to select keywords (Use 1). The second is displaying the resulting ads alongside the natural results (Use 2). For both uses, the AG addresses whether they fulfill the additional cumulative criteria for trademark infringement under Article 5(1) of Directive 89/104, which are:

i) that use takes place in the course of trade;

(ii) it relates to goods or services which are identical or similar to those covered by the trade marks; and

(iii) it affects or is liable to affect the essential function of the trade mark – which is to guarantee to consumers the origin of the goods or services – by reason of a likelihood of confusion on the part of the public.

The AG concludes that Use 1 does not fulfill criteria ii, which requires “that a sign corresponding to a trade mark is used ‘in such a way that a link is established between the sign … and the goods marketed or the services provided’“. According to the AG, such a link is not established when Google is offering advertisers the possibility to select keywords:

In the traditional example of a use in advertising, the link is established between the trade mark and the good or service sold to the general public. This happens, for example, when the advertiser sells a good under the trade mark. That is not the case with the use by Google consisting in allowing advertisers to select keywords so that their ads are presented as results. There is no good or service sold to the general public. The use is limited to a selection procedure which is internal to AdWords and concerns only Google and the advertisers.

After this conclusion, the opinion discusses Use 2 of the trademark. In short, the AG concludes that Use 2 does not constitute trade mark infringement either, since it only satisfies criteria i and ii, but not criteria iii. There is a lack of likelihood of confusion on the part of the public. Interestingly, the AG pays particular attention to the consequences of concluding otherwise. He states that it would be difficult to make a legal distinction under the Court’s case law between the use of keywords to trigger advertisements and the use of keywords to trigger natural results. This would mean that the use of trademarks to trigger natural search results would amount to trademark infringement as well. Poaires Maduro’s analysis shows he has thought carefully about Google’s search engine and the distinction between sponsored and natural results. This is a distinction which I have also argued to be limited and more complex than in editorial media like newspapers. The AG’s point is that the distinction is not one of whether or not there is exposure, but in the degree of exposure:

72. [..] by associating ads with certain keywords through AdWords, Google provides the advertisers’ sites with added exposure. However, it should be remembered that such sites, even the counterfeit ones, could feature among the natural results of the same keywords (depending on their relevance as detected by the search engine’s automatic algorithms). It should also be remembered that ads and natural results have very similar characteristics: a short message and a link. Accordingly, the difference between ads and natural results lies not so much in whether or not ads provide exposure, but more in the degree of such exposure. [...]

Only after these initial considerations, addressed to the Court, the opinion deals with the fulfillment of criteria i-iii, in which he also addresses the use of keywords to trigger natural results. Criteria i and ii are satisfied for both sponsored and natural results (par. 75-81). But, criteria iii is not, as there is no likelihood of confusion. Of course, such confusion may be present because of a specific use of the trademark by the advertiser. The question the AG had to answer, however, was whether the use of keywords corresponding to a trademark would constitute infringement per se (par. 83). The AG argues that such confusion would only be present if users would assume that all the sponsored results presented in return to a search with a keyword corresponding to a trademark, originate from the same or economically linked undertakings as the trademark proprietor. In his conclusion that this is not the case, the AG relies on the search experience, which included the assessment of natural and sponsored results, as a whole. In particular, he uses the argument that searching in a Web search engine is what I would call a polluted process anyway. End-users continuously have to deal with results they might not have had expected.

86. By comparing ads with natural results, the parties assume that natural results are a proxy for ‘true’ results – that is to say, that they originate from the trade mark proprietors themselves. But they do not. Like the ads displayed, natural results are just information that Google, on the basis of certain criteria, displays in response to the keywords. Many of the sites displayed do not in fact correspond to the sites of the trade mark proprietors.

87. The parties are influenced by the belief to which I referred at the outset – that if an internet user seeks something in Google’s search engine, the internet user will find it. However, that is not a blind belief; internet users are aware that they will have to sift through the natural results of their searches, which often reach large numbers. They may expect that some of those natural results will correspond to the site of the trade mark proprietor (or an economically linked undertaking), but they will certainly not believe this of all natural results. Moreover, sometimes they may not even be looking for the site of the trade mark proprietor, but for other sites related to the goods or services sold under the trade mark: for example, they might not be interested in purchasing the trade mark proprietor’s goods but only in having access to sites reviewing those goods.

88. Google’s search engine provides help in sifting through natural results by ranking them according to their relevance to the keywords used. There may be an expectation on the part of internet users, based on their assessment of the quality of Google’s search engine, that the more relevant results will include the site of the trade mark proprietor or whatever site they are looking for. However, this is nothing more than an expectation. Confirmation only comes when the site’s link appears, its description is read, and the link is clicked on. Often the expectation will be disappointed, and internet users will go back and try out the next relevant result.

89. Google’s search engine is no more than a tool: the link that it establishes between keywords corresponding to trade marks and natural results, even the more relevant sites, is not enough to lead to confusion. Internet users only decide on the origin of the goods or services offered on the sites by reading their description and, ultimately, by leaving Google and entering those sites.

90. Internet users process ads in the same way as they process natural results. By using AdWords, advertisers are in fact attempting to make their ads benefit from the same expectation of being relevant to the search – that is why they are displayed alongside the more relevant natural results. However, even assuming that the internet users are searching for the site of the trade mark proprietor, there is no risk of confusion if they are also presented with ads.

91. As with natural results, internet users will only make an assessment as to the origin of the goods or services advertised on the basis of the content of the ad and by visiting the advertised sites; no assessment will be based solely on the fact that the ads are displayed in response to keywords corresponding to trade marks. The risk of confusion lies in the ad and in the advertised sites, but, as has already been pointed out, the Court is not being asked about such uses by third parties: it is being asked only about the use by Google of keywords which correspond to trade marks.

92. It must be concluded, therefore, that neither the display of ads nor the display of natural results in response to keywords which correspond to trade marks leads to a risk of confusion as to the origin of goods and services. Accordingly, neither AdWords nor Google’s search engine affects or is in danger of affecting the essential function of the trade mark.

Additional functions of the trade mark restricted by freedom of expression and freedom of commerce

This still leaves additional functions of the trade mark unaddressed, such as the reputational function of well-known brands, which others can harm or take unfair advantage of. Notably, this type of protection does not depend on a risk of confusion of the public, and is therefore independent of the essential function of trademarks (par. 94). The Court has stated that such other functions of the trade mark “include guaranteeing the quality of goods or services and those of communication, investment or advertising; it has also stated that such functions are not limited to trade marks which have a reputation but apply in the case of all trade marks.” The AG continues by arguing that these functions of the trade mark, which he places on a sliding scale, are linked to the promotion of innovation and investment.

After having made a short overview of the justification of the protection of other functions of the trade mark, the AG places these interests against other interests involved in the Google Adwords cases. The AG argues that these interests need to be balanced against freedom of expression and freedom of commerce. In other words, the AG construes the protection of trade marks as an interference with freedom of expression and freedom of commerce. The AG concludes that in the search engine and keyword advertising context, freedom of expression and freedom of commerce trump the interests of trade mark proprietors to control the use of their trade marks as keywords in the absence of confusion.

103. Those freedoms are particularly important in this context because the promotion of innovation and investment also requires competition and open access to ideas, words and signs. That promotion is always the product of a balance that has been struck between incentives, in the form of private goods given to those who innovate and invest, and the public character of the goods necessary to support and sustain the innovation and investment. That balance is at the heart of trade mark protection. Accordingly, despite being linked to the interests of the trade mark proprietor, trade mark rights cannot be construed as classic property rights enabling the trade mark proprietor to exclude any other use. The transformation of certain expressions and signs – inherently public goods – into private goods is a product of the law and is limited to the legitimate interests that the law deems worthy of protection. It is for this reason that only certain uses may be prevented by the trade mark proprietor, while many others must be accepted.

After giving two such examples where use of trade marks must be accepted because of freedom of commerce and freedom of expression (comparative advertising and use for descriptive purposes), the AG addresses

[t]he question [..] whether freedom of expression and freedom of commerce should also take precedence over the interests of the trade mark proprietors in the context of Google’s uses of keywords which correspond to trade marks. Those uses are not purely descriptive; nor do they constitute comparative advertising. However, in a manner comparable to such situations, AdWords creates a link to the trade mark for consumers to obtain information that does not involve a risk of confusion. It does so both indirectly, when it allows the selection of keywords, and directly, when it displays ads.

107. Google’s uses of keywords which correspond to trade marks are independent of the use of the trade mark in the ads displayed and on the sites advertised in AdWords; they are limited to conveying that information to the consumer. Google does so in a manner which can be said to intrude even less on the interests of the trade mark proprietors than purely descriptive uses or comparative advertising. As I shall develop shortly, that point emerges more clearly if one reflects how absurd it would be to allow sites to use a trade mark for purely descriptive uses or comparative advertising, but not to allow Google to display a link to those sites. I believe, therefore, that the same principle should apply: given the lack of any risk of confusion, trade mark proprietors have no general right to prevent those uses.

108. I am concerned that, if trade mark proprietors were to be allowed to prevent those uses on the basis of trade mark protection, they would establish an absolute right of control over the use of their trade marks as keywords. Such an absolute right of control would cover, de facto, whatever could be shown and said in cyberspace with respect to the good or service associated with the trade mark.

109. It is true that, in the present cases, the trade mark proprietors limit their claims to Google’s uses in AdWords. Nevertheless, once the notion of ‘confusion’ between ads and natural results is dispelled, this becomes a matter of perspective. Trade mark proprietors may also try to prevent the display of natural results alongside ads. The right of control that they claim covers all the results of keywords corresponding to their trade marks.

110. That absolute right of control would not take into account the particular nature of the internet and the role of keywords in it. The internet operates without any central control, and that is perhaps the key to its growth and success: it depends on what is freely inputted into it by its different users. (57) Keywords are one of the instruments – if not the main instrument – by means of which this information is organised and made accessible to internet users. Keywords are therefore, in themselves, content-neutral: they enable internet users to reach sites associated with such words. Many of these sites will be perfectly legitimate and lawful even if they are not the sites of the trade mark proprietor.

111. Accordingly, the access of internet users to information concerning the trade mark should not be limited to or by the trade mark proprietor. This statement does not apply only to search engines such as Google’s; by claiming the right to exert control over keywords which correspond to trade marks in advertising systems such as AdWords, trade mark proprietors could de facto prevent internet users from viewing other parties’ ads for perfectly legitimate activities related to the trade marks. That would, for instance, affect sites dedicated to product reviews, price comparisons or sales of second-hand goods.

112. It should be remembered that those activities are legitimate precisely because trade mark proprietors do not have an absolute right of control over the use of their trade marks. The Court played a determining role in establishing this, by holding that the interests of trade mark proprietors were not sufficient to prevent consumers from benefiting from a competitive internal market. It would be paradoxical if the Court were now to curtail the possibility for consumers to have access to those benefits, as internet users, via the use of keywords.

113. It should therefore be concluded that the uses by Google, in AdWords, of keywords which correspond to trade marks do not affect the other functions of the trade mark, namely guaranteeing the quality of the goods or services or those of communication, investment or advertising. Trade marks which have a reputation are entitled to special protection because of those functions but, even so, such functions should not be considered to be affected. Thus, the uses by Google may not be prevented even if they involve trade marks which have a reputation.

Contributory infringement, third part liability and the absence of a safe harbour

In the remainder of the opinion, the AG discusses the responsibility of Google for trademark infringements taking place in the context of the Adwords system. The AG explains that the plaintiffs are arguing for a contributory infringement standard under European trade mark rules, by claiming that the possible (and in fact realistic) third party infringements in the context of the Adwords system. He asserts that this standard is foreign to most European countries and should be discarded. Instead, third party infringements should be dealt with through general liability rules. He gives one additional argument against a contributory liability standard, based on its possible chilling effects:

121. The claims of the trade mark proprietors would create serious obstacles to any system for the delivery of information. Anyone creating or managing such a system would have to cripple it from the start in order to eliminate the mere possibility of infringements by third parties; as a result, they would tend towards overprotection in order to reduce the risk of liability or even of costly litigation.

122. How many words would Google have to block from AdWords in order to be sure that no trade mark was infringed? And, if the use of keywords can contribute to trade mark infringements, how far would Google be from having to block those words from its search engine? It is no exaggeration to say that, if Google were to be placed under such an unrestricted obligation, the nature of the internet and search engines as we know it would change.

123. That does not mean that the concerns of the trade mark proprietors cannot be addressed, only that they should be addressed outside the scope of trade mark protection. Liability rules are more appropriate, since they do not fundamentally change the decentralised nature of the internet by giving trade mark proprietors general – and virtually absolute – control over the use in cyberspace of keywords which correspond to their trade marks. Instead of being able to prevent, through trade mark protection, any possible use – including, as has been observed, many lawful and even desirable uses – trade mark proprietors would have to point to specific instances giving rise to Google’s liability in the context of illegal damage to their trade marks. They would need to meet the conditions for liability which, in this area, fall to be determined under national law.

124. It is in the context of possible liability that particular aspects of Google’s role – such as the procedure under which it allows advertisers to select keywords under AdWords – could be taken into account. For example, Google provides advertisers with optional information which can help them to maximise the exposure of their ads. As some of the parties have pointed out, it may be that information on keywords which correspond to trade marks will also yield (as related keywords) information on expressions denoting counterfeit. On the basis of that information, advertisers may decide to select those expressions as keywords in order to attract internet users. It is possible that, in so acting, Google may be contributing to internet users being directed to counterfeit sites.

125. In such a situation, Google may incur liability for contributing to a trade mark infringement. Even though an automated process is involved, there is nothing to prevent Google from making limited exclusions from the information which it provides to advertisers regarding associations with expressions clearly denoting counterfeit. The conditions under which Google might be liable are, however, a matter to be decided under national law. They are not covered by Directive 89/104 or Regulation No 40/94 and, accordingly, fall outside the scope of the present cases.

Unfortunately, current search engine liability and intermediary liability standards more generally, could easily be equally chilling as the contributory liability standard the AG rejects. The safe harbour system for intermediaries in the EU, as introduced by the Directive on Electronic Commerce, was crippled from the start, as I have argued in ‘Legal space for innovative ordering’. And there is no reason to believe that the wide variety and unclear scope of third party liability standards for search engines throughout the European Union would provide a robust protection against the risks as identified above under par. 121-22.

Does the hosting safe harbour protect Google?

In the next section of the opinion, the AG addresses the question whether Google can assert protection under the safe harbours for third party liability, more specifically Article 14 of the Directive on Electronic Commerce. This is the first time the European Court of Justice will have to address the scope of these safe harbours. The first question is whether the activities of Google in the context of AdWords fall under the scope of the Directive, i.e. is Adwords to be considered an information society service. The second question is whether these activities fall under the scope of one of the intermediary liability provisions.

The AG concludes rightly, that the first question should be answered in the affirmative. It is unclear to me, why the Advocat General discusses Article 21 of the Directive in this context. Article 21.2 puts the European Commission under an obligation (which it unfortunately refused to fulfill for the last 5 years) to analyse “the need for proposals concerning the liability of providers of hyperlinks and location tool services“. As everyone that took a close look at the legislative history of the safe harbours in the Directive should know, Article 12, 13 and 14 provide safe harbours for mere conduit, caching (by ISPs), and hosting activities respectively. The lack of safe harbours for other types of activities, and the limited language of Article 14 has led some national courts to extend the safe harbours, but the directive is really limited to quite traditional ISP activity. The directive left open the possibility for member states to adopt additional safe harbours, such as for search engines. In fact, this is what some countries have explicitly decided to do (for instance Austria and Spain), and others have explicitly refused to do (Germany), others have consulted the industry and public about (United Kingdom), and some have ignored altogether (The Netherlands). In some member states, a safe harbour for search engines is basically read into general tort law principles for third party liability (The Netherlands), in line with case law about ISP liability in the 90s predating the safe harbours.

The AG ignores this legal and legislative reality and decides to come up with his own analysis. With reference to the wording of Article 14 – “AdWords features certain content – namely the text of ads and their links – which is both provided by the recipients of the service (the advertisers) and stored at their request“, he concludes that the conditions for hosting, as defined in Article 14 of Directive 2000/31, are nominally fulfilled. Notably, he misses half of the question, since third party liability for a service like Adwords, does not only relate to illegal third party content in the references itself, but also illegal third party in the websites the references link to.

When reaching the point about the ‘nature’ of the activities which are covered by the hosting safe harbour, the AG seems to disagree with the argument that hosting activities need to be of a purely technical nature to be covered. But the AdWords system stands out, in the view of the AG, because it is not ‘neutral’ enough.

142. To my mind, the aim of Directive 2000/31 is to create a free and open public domain on the internet. It seeks to do so by limiting the liability of those which transmit or store information, under its Articles 12 to 14, to instances where they were aware of an illegality. (71)

143. Key to that aim is Article 15 of Directive 2000/31, which prevents Member States from imposing on information society service providers an obligation to monitor the information carried or hosted, or actively to verify its legality. I construe Article 15 of that directive not merely as imposing a negative obligation on Member States, but as the very expression of the principle that service providers which seek to benefit from a liability exemption should remain neutral as regards the information they carry or host.

Maybe this is the classical trap of intermediary liability standards. If neutrality of intermediaries is a prerequisite for enjoyment for distributor liability, those intermediaries will not be able to provide social benefits that require them to make ‘non-neutral’ / active choices. The fact that a book store or library should not be held liable in the absence of knowledge about the availability of illegal material, does not imply that it should not try to have a collection of valuable books on offer.

The AG makes another side-step, when he makes a difference between the natural and the sponsored results when it comes to the neutrality of their selection. Similarly to the analysis with regard to trade mark infringement, the AG seems preoccupied with the idea that natural results would not be protected by the safe harbour if he would conclude that the Adwords system for sponsored references would not be covered by the safe harbour. The best I can make of his argument, is that there is room to include natural search results under a similar regime as Article 14 and Article 15 of the Directive. Whereas the AG put his faith in national third party liability rules a number of paragraphs before, he now seems to think those liability rules would be insufficient.

Its natural results are a product of automatic algorithms that apply objective criteria in order to generate sites likely to be of interest to the internet user. The presentation of those sites and the order in which they are ranked depends on their relevance to the keywords entered, and not on Google’s interest in or relationship with any particular site. Admittedly, Google has an interest – even a pecuniary interest – in displaying the more relevant sites to the internet user; however, it does not have an interest in bringing any specific site to the internet user’s attention.

The assertion that Google can make a determination of the relevance of websites and remain ‘neutral’ at the same time strikes me as utterly unconvincing. It doesn’t help that the notions of ‘relevance’ of websites and the ‘interest’ in giving specific prominence to websites are not being defined. Google chooses to use certain ranking algorithms because it believes they end up delivering the ‘best’ results. There is no agreement what means ‘best’. Google adds value (and lowers value, depending on the perspective you take), by making value-based judgments about the use of their algorithms and other decisions about their search results. And if one takes a closer look, there are all sorts of sites that Google has a direct or indirect economic interest to rank higher or lower (YouTube, AdSense network, Adwords clients, etc, etc…). The AG ignores this point completely. Returning to Adwords, he concludes that Google is not neutral enough in this context:

145. That is not the position as regards the content featured in AdWords. Google’s display of ads stems from its relationship with the advertisers. As a consequence, AdWords is no longer a neutral information vehicle: Google has a direct interest in internet users clicking on the ads’ links (as opposed to the natural results presented by the search engine).

This simply implies that third party liability for sponsored referencing systems like Adwords is governed by national law, which was the right answer in the first place, both for natural and sponsored results. The new European Commission will have to evaluate the situation of search engine liability (its evaluation is planned for 2009 and long overdue). Whether they will be able to clean up the ever growing mess of European intermediary liability remains to be seen. The (partly) European harmonisation of national general liability laws, which it would basically amount to, is an extremely ambitious project.

My conclusion

I find the AG’s analysis of the questions about trade mark infringement quite thoughtful and freedom of expression and freedom of commerce are rightly brought into play to prevent complete control of keyword based referencing and advertising tools by trade mark proprietors. But the result of the AG’s conclusion, if followed by the Court, implies that national courts will fall back on national provisions for third party liability, which are maybe not as chilling for freedom of expression and freedom of commerce but can hardly be argued not to remove incentives for internationally operating search engines to be very responsive towards requests of removal of references by trade mark proprietors.

The AG’s opinion about the scope of intermediary liability in the Directive of Electronic Commerce is confusing. The European regime of safe harbours was incomplete from the start. There are many good arguments to extend the safe harbours to information location tools and other intermediaries at the European level. Neutrality as the AG seems to understand it, however, should not be the overriding factor in making that choice, since it creates disincentives for intermediaries to add value through active governance of their platform.

Other coverage online:

Austrotrabant’s blog, Attempt to graphically interpret the GA’s AdWords opinion

Outlaw, Google’s AdWords given trade mark all clear by ECJ advisor

IPKAt, Google AdWords — the wait is over

panGloss, Google 1: Luxury Brands 0!

Global Network Initiative Fails to Find Qualified Staff

Wednesday, August 5th, 2009

Rosalie Marshall reports for V3.co.uk that the Global Network Initiative, which was launched in the end of 2008, still did not find qualified staff. The result is that the initiative is failing to really take off. What could stand in the way of finding a qualified director, if the network of participating companies, non- profits and research institutions includes some of the biggest names in their fields?

As the principles that have been adopted by the initiative could probably help to bring this global discussion about freedom of expression and privacy in a global environment to a higher level, this is quite a pity.

The Honourable Mr Justice Eady: Search Snippets are not ‘Published’ by Search Engines

Thursday, July 23rd, 2009

Interesting decision in the U.K. about the liability of search engines for their search results under English defamation law. Thanks to Google’s lawyers, it provides a great overview of some common law principles, the relevance of freedom of expression and the e-commerce directive and its implementations.

German Parliament About to Vote on Internet Censorship

Tuesday, June 16th, 2009

Our German neighbors are about to vote about a controversial legislative package introducing mandatory internet censorship at the network level. Netzpolitik has an excellent overview of the political debate until now. AK-Zensur, the Working Group on Internet Filtering and Censorship, has a comprehensive overview of arguments against the proposals. Germany would be the first EU country to adopt mandatory Internet filtering for Internet access providers. Some ISPs in some other European countries already filter on the basis of black lists provided to them by government agencies and/or private organizations. Here is part of Markus Beckedahl’s account of the action against the proposed censorship:

The net community did not only oppose the governments plans, but also made constructive suggestions how to deal with the problem of child pornography without introducing a censorship architecture and circumcising constitutional freedoms. The working group on censorship demonstrated the alternatives for instance by actually removing over 60 websites containing child pornographic content in 12 hours, simply by emailing the international providers who then removed this content from the net. The sites were identified through the black lists of other countries documented on Wikileaks. This demonstration underlines the protesters main arguments: instead of effectively investing time and efforts to have illegal content removed from the internet, the German government is choosing censorship and blocking – an easy and dangerous way out. The greatest fear of the protesters is that once in place, the infrastructure will be used to censor other forms of unwanted content, not only child pornography. German politicians already seem to be lining up with their wish-list of content to be censored in future – the suggestions ranging form gambling sites, Muslim web pages, “killer games”, and the music industry cheering up with the thought of finally banning pirate bay and p2p.

You can find a detailed linklist of the zensursula-debate here (in german).

French Constitutional Court Strikes Down Core Elements of Hadopi

Thursday, June 11th, 2009

In an important decision the French Constitutional Court has declared the core elements of the proposed three strikes law in France (Hadopi) unconstitutional, considering the freedom of expression and communication, the presumption of innocence, the right to privacy and confidentiality of communications.

This puts further pressure on the Council of Ministers to respect the EP’s adoption of amendment 138, requiring member states to respect the fundamental rights of internet end-users in the context of internet access. The Dutch minister of economic affairs recently wrote a letter to the Dutch parliament, stating the Dutch government did not consider the three strikes strategy to be acceptable. The letter also refers to the new (constitutonally problematic) Dutch notice and takedown code of conduct (my translation):

In the Dutch context, a procedure to deal with end-users with bad intentions is also not necessary, because, partly at the government’s urging, we have adopted a code of conduct on the basis of which internet providers, at the initiative of law enforcement authorities, take action themselves against criminal activity such as child pornography (notice and takedown code of conduct). It will have to be clear that the amendment does not interfere with this code of conduct. The Netherlands wants further clarification of the amendment before it can take a definitive point of view. In particular, it will have to become clear in which cases there should be a prior judicial decision and ion which cases not.

The Dutch government expects the Council to reject the Telecom package as adopted by the EP and the negotiations in third reading to be restricted to amendment 138.

Julie Cohen on the Changing Meaning of `Unauthorized Access`

Monday, June 8th, 2009

This is a really great lecture! Julie Cohen manages to touch upon almost everything I am interested in, in about half an hour.

Website Liable For ‘Wrong’ Suggestions In Google Result nr. II

Thursday, May 28th, 2009

The motivation (in Dutch) of the preliminary judgment of the Court in Amsterdam about the liability of a website for a wrong suggestion in a Google search result snippet has been published. The problem was that a combination of two sentences ‘suggested’ that defendant Zwartepoorte, a car salesman, was bankrupt.

As was to be expected, the judge concludes that its judgment is very case specific. It clarifies that it involves a balancing act between the freedom of expression of websites and the damages suffered by the plaintiff.  According to the Court, the duty of care to remove or restructure the content that caused a combination of snippets to appear in a Google search result existed because:

1. plaintiff had suffered damages because of the wrong suggestion;

2. defendant used the services of Google, had optimized the ranking of its website in Google, and profited from this (through advertisements);

3. Plaintiff had requested to do something about it a number of time, with reference to the damage it was suffering;

4. It was easy for defendant to make a simple change to the website that would have caused the snippet to change;

Discussion

Ar these circumstances that case specific? I very much doubt it. And are they convincing?

Let us first consider the aspect of damage. There was proof that some people thought that plaintiff was bankrupt. They were calling and writing the company and even asking the regional newspaper in Zeeland, the PZC. There was no proof that this caused plaintiff to suffer material damage. It’s unclear whether the Court assumes there was any. From the lack of material damages in the verdict, it seems there was insufficient proof for this. The damage therefore consists of people thinking that defendant was bankrupt.

I wonder what is meant by the statement that defendant used the services of Google under 2. Normally, the inclusion of one’s website in Google does not imply the use of any service. It could mean that defendant used Google’s webmaster tools to optimize the site, so the webmaster should have been aware of Google and the importance of Google’s search results. The other arguments under 2 fit into this reasoning. Not only had plaintiff knowledge of Google’s search service, it optimized it and profited from a prominent listing because it attracted visitors, which in turn increased advertising revenues.

The argument under 3 increases the knowledge of defendant that something could be causing damages to plaintiff. Argument 4 relates to the costs and difficulty of avoidance to cause damage. Defendant did not control the combination of sentences in the search result but by restructuring its website or removing the word bankrupt from the particular page, it could cause the combination to disappear, according to the Court.

In other words, the Court puts itself in the website editor’s shoes. I find this highly problematic from a free speech perspective. And implicitly, the court assumes that there is not a lot of value in the website and the combination of information it contained.

Legal Cause

The other basic problem with the Court’s reasoning is in the aspect of assigning the damage to the conduct (negligence) of defendant. This assignment of damages, i.e. ‘legal cause’, is a substantive legal test in (Dutch) tort law, which relies on the foreseeability or the remoteness of damages. It is with regard to this test that the court’s reasoning breaks down. Again, the damage consisted of people thinking that plaintiff was bankrupt. For legal cause to be fulfilled, these thoughts should be somehow reasonable. And freedom of expression makes the test of legal cause particularly important. One can not be liable for a completely wrong conclusion that is drawn from one’s statement. Google search results are search results, they are not an independent sources of information. In particular, Google’s snippets are not an authoritative source of information about bankruptcy. If one wants to check whether a company is bankrupt, there are specific sources where this information can be found. And people that search for [defendant bankrupt] were probably acting on a rumor already. They in particular should be expected to check the underlying information. It also follows that the conclusion that defendant could easily prevent the damage is a little too easy. In principle, it’s a company’s own responsibility to address unreasonable conclusions about its business, by its own statements or conduct.

Who’s responsible?

Of course, the judge had to clarify why defendant, a website, could be held responsible for a combination of (perfectly legal) sentences in a search result which it did not control. The Court argues that it might be true that the website had no control over the functioning of Google but suggests that these questions about the opacity of Google’s functioning should be addressed in a broader context. With reference to the arguments under 2 above, it then concludes that defendant had its own responsibility. The Court evades the question whether Google would have been liable as well, i.e. if it would have refused to take down the result after a request to do so. I doubt it. First, Google would have hired better lawyers, that would have made a better case against it. And second, the judgment fits well into the paradigm to address ‘problems’ in search engines by addressing the sources of information. But seriously, to make websites liable for the impact of legal publications in search engines on unreasonable end-users is a step too far.

It will be interesting to see whether there will be an appeal. Even if there isn’t, I think we can safely assume that this judgment will remain ‘unique’. UPDATE: Defendant appealed, this time with a lawyer.

Via Arnoud Engelfriet.

Website Liable For ‘Wrong’ Suggestions In Google Result

Friday, May 15th, 2009

A Dutch judge has concluded (in a preliminary judgment) that a website is liable for a wrong suggestion in the snippet text of ‘its’ Google search result. The judge has ordered the webmaster to change its website in a way that will stop the wrong suggestion from showing up in Google. Note that the text on the website itself was not unlawful. The problem was that a search for [zwartepoorte failliet] (= CompanyName bankrupt] resulted in the following snippet text:

Volledige naam: Zwartepoorte Specialiteit: BMW … Dit bedrijf is failliet verklaard, het is overgenomen door het motorhuis Ik heb bij Boot Rialto gewerkt …

My translation:

Complete name: Zwartepoorte Specialiteit: BMW … This company has been declared bankrupt, it has been acquired by the motordealer I have worked for Boat Rialto …

One way to do as the judge ordered is to take down the complete page with information about the company Zwartepoorte. That is what seems to have happened now. Another solution would be to use code language such as is common with the word pr0n.

Clearly the combination of words and the quote in question will show up all over the Web so I don’t see any benefits for the company in question to have won this case. And of course, the judgment (the reasoning of the Court will be published on 27 May 2009) does not make any sense, from a tort law or from a technology perspective. A reason could be that the defendant appeared in person.

I am fascinated by the idea that the existence of search engines, and Google in particular, gives websites some kind of qualified responsibility with regard to the content on their website. I see more and more examples of this, for instance the idea that personal data should be prevented from being indexed through the use of robots.txt instructions.

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