Summary:

The system is one of several options being weighed by Germany after this month’s seismic European ruling about the removal of unwelcome information from search results. It sounds ominous, but it beats automated takedown.

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The fallout from this month’s European “right to be forgotten” ruling continues to manifest itself: according to the Financial Times and Bloomberg, Germany may bring in arbitration courts to adjudicate when information should or should not be purged from Google’s mighty portal.

Earlier this month the Court of Justice of the European Union ruled that people can complain to a search engine (which means Google, seeing as the company has well over 90 percent market share in Europe) about search results that link to personal information they consider stale or otherwise unwelcome.

It’s important to note that this isn’t about taking down what’s being linked to, but only search results, so it’s not really so much a “right to be forgotten” as a “right to go unreferenced” – a fact that appears to have escaped the many people now wrongly thronging to have British newspapers take down nasty stories about them. The true right to be forgotten will be introduced in upcoming data protection legislation, though I suspect it will very difficult to enforce.

Anyhow, the question now for the various European legal systems is how to make sure that information removed from Google’s results really is “inadequate, irrelevant or no longer relevant, or excessive in relation to the purpose for which they were processed and in the light of the time that has elapsed.” And even if it fits those criteria, there is still a public interest defence against removal that sometimes needs to be taken into account.

Germany’s government appears to be keen to avoid Google instituting an automated takedown system, which is why it wants to put real people in charge of the situation in that country. That could mean “cyber courts” (as the FT phrased it), it could mean third-party arbitration, or it could mean something else.

The idea of what would effectively be state-run censorship courts is, frankly, worrisome. One doesn’t need to adhere to U.S. standards of free speech to be a bit freaked out by such an Orwellian-sounding apparatus. However, it’s a darn sight less troubling than a DMCA-style takedown system. I would much rather service providers such as Google weren’t given the responsibility of interpreting European law and deciding what’s in the public interest and what isn’t – the cheapest response there is to automate the process and err on the side of the complainant.

That said, “cyber courts” would cost money, which would presumably need to be paid by either the state or the complainant. Perhaps the worst outcome would be a system where the rich can afford to have unwelcome information about themselves expunged, but ordinary people can’t.

So welcome to the European web’s uncertain future. I agree with tech law blogger Andres Guadamuz that we really need to come back in a couple years and see whether the new principle has been abused, but it’s certainly going to be entertaining tracking what happens as courts struggle to put it into practice.

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