In the series “algorithm regulation”, we discuss the implications of the growing importance of technological algorithms as a means of regulation in the digital realm.
With a market share of over 90 percent in Europe, the Google search engine and its search algorithm respectively decide what is relevant on an issue and what not. Any information that is not placed on the first few pages of Google’s search results will hardly ever be found. On the other hand, personal information that is listed prominently in these results may haunt you forever. The latter issue was recently tried by the European Court of Justice (ECJ), who ruled (C-131/12) that
the activity of a search engine consisting in finding information published or placed on the internet by third parties, indexing it automatically, storing it temporarily and, finally, making it available to internet users according to a particular order of preference must be classified as ‘processing of personal data’
and that, under certain not very clearly spelled out conditions relating to the data subject’s rights to privacy,
the operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person.
By crafting such a “right to be forgotten”, the ECJ effectively regulates Google’s search algorithms. In other words, we can observe the ECJ regulating Google’s algorithmic regulation. In response to the ruling, Google has already set up an online form for deletion requests, stating that
[i]n implementing this decision, we will assess each individual request and attempt to balance the privacy rights of the individual with the public’s right to know and distribute information. When evaluating your request, we will look at whether the results include outdated information about you, as well as whether there’s a public interest in the information—for example, information about financial scams, professional malpractice, criminal convictions, or public conduct of government officials.
On the first day after publishing the online form alone, Google has received 12.000 deletion requests. However, links will only be removed from search results in member states of the European Union and some other European countries (e.g. Iceland, Norway).
Taken together, the consequences of the ECJ ruling are manifold. Just to name a few:
- Algorithmic regulation and governance can be addressed by public regulatory means. It will be even more difficult in the future for online service providers to justify outcomes by simply pointing to the “technical” nature of algorithms.
- Running a search engine will become even more expensive, since platform owners will have to provide ever more sophisticated deletion infrastructures. Differently to the mostly automated and privately negotiated deletion practices in the copyright realm (see “Algorithm Regulation #2: Negotiating Google Search“), in this case Google already announced that decisions will be made by people, not algorithms.
- The publicly mandated deletion infrastracture makes Google the
officialarbiter with regard to conflicting fundamental rights: privacy rights and freedom of information rights. Considering this arbiting role problematic, some argue that an independent arbritration board should be implemented to handle removal requests.
- The decision and Google’s implementation thereof contributes to re-introducing regional borders into the online realm. Similar to YouTube’s video blocking practices that differ from country to country (see “This Post is Not Available in Your Country“) and previous differences in search results between Europe and the US (for example with regard to nazi content), the ECJ ruling fosters further regional differentiation of online services.
- The growing number of deleted search results may undermine the currently widespread prejudice that what is not found by Google does not exist.
With deletion routines already in place, there is little chance that alternatives to deletion will be explored. One such alternative was suggested by Jonathan Zittrain in his NYT opinion piece criticizing the ruling:
Perhaps querying someone’s name would result in an initial page of search results in which some form of curating was permitted for people sharing that name; the subsequent pages of results would provide the unvarnished material that a regular search now generates.
From a research perspective, I would deem it promising to study the increasing complexity of private and public regulation of algorithms and the interaction between algorithmic regulation and regulation of algorithms.