“If we automate our judgment-making and execute it at web scale,” Google and other aggregators have long told us, “then we absolve ourselves of responsibility for our judgments.” To which the Court of Justice of the European Union today replied, “No, you don’t.”
35. In this connection, it should be pointed out that the processing of personal data carried out in the context of the activity of a search engine can be distinguished from and is additional to that carried out by publishers of websites […]
38. Inasmuch as the activity of a search engine is therefore liable to affect significantly, and additionally compared with that of the publishers of websites, the fundamental rights to privacy and to the protection of personal data, the operator of the search engine as the person determining the purposes and means of that activity must ensure, within the framework of its responsibilities, powers and capabilities, that the activity meets the requirements of Directive 95/46 in order that the guarantees laid down by the directive may have full effect and that effective and complete protection of data subjects, in particular of their right to privacy, may actually be achieved.
39. Finally, the fact that publishers of websites have the option of indicating to operators of search engines, by means in particular of exclusion protocols such as ‘robot.txt’ or codes such as ‘noindex’ or ‘noarchive’, that they wish specific information published on their site to be wholly or partially excluded from the search engines’ automatic indexes does not mean that, if publishers of websites do not so indicate, the operator of a search engine is released from its responsibility for the processing of personal data that it carries out in the context of the engine’s activity.
That feels kind of seismic.
Image: Daniel Oines.
Hi Nicholas, thanks for this post and your blog generally. I enjoyed your last post ‘A complicated courtship’. Yes it does feel kind of seismic. But the vast majority of human beings on this planet, wired though they may be, have no clue these seismic shifts and the tectonic plates that will govern their digital existence even exist. We need hockey stick growth in general educational levels about what a digital existence implies and a more widespread and conscious understanding of the choices on offer. What do you think we can do about that?
Not seismic but a tremor that hopefully could lead to a tsunami. It has been obvious for many years that Google and Facebook have hood-winked consumers, governments and business. The great unravelling is needed.
I applaud the Court of Justice of the European Union, but unfortunately I’m having a hard time imagining something like this happening in the U.S.
Both the New York Times editorial board and this NYT commentary have come out criticising the ECJ’s judgment. I found the NYT editorial disappointlingly myopic and otherwordly – barely an acknowledgement of the concern in relation to what happens to an individual as a consequence of his personal data being effectively controlled/processed/distributed by the big internet aggregators. But what’s interesting is that the comments on both, as ranked by readers, are overwhelmingly positive towards the European judgment. US readers of the NYT appear to be much more in agreement with the spirit of the ECJ judgment than with the NYT’s position. But is anyone batting for them in Washington?
I, too, was disappointed by the Times editorial, which, with its focus on the press, seemed to be based on a misapprehension of the ruling and the underlying directive. The underlying directive specifically provides an exception for journalism, an exception that was reinforced by the ruling of the Spanish court that the European court reviewed. One of the central points of the European court’s ruling was that the processing carried out by a search engine is different from and additional to the original publication of information. The court’s judgment was very much focused on that additional processing, not the original publication.
This is fundamentally less about “automate our judgment-making” (though that’s sometime used as an excuse) and more the battle over the concept crudely expressed as “You have no privacy, get over it”. That is, the algorithm aspect is something of a rhetorical distraction. It’s a values and rights problem, though granted appearing in the digital context. I’m deeply unhappy these days about how the only interest which seems to be taken as credible is copyright (as it’s mainly an issue of big corporations who have large amounts of money, which is turning out to be the practical meaning of being regarded as significant).