Although we are distracted by daily news of crime (for instance, Oscar Pistorius) or sex (Jimmy Savile and others), we all know that there are more important developments changing our world. An example is the way the huge internet barons – Amazon, Google, Facebook – are altering our physical and virtual landscapes in a way that seems out of our control. Interestingly, the only tool which seems able to grapple with them is, of all things, EU law. Here are some examples from the areas of data protection and competition, which show that the battle ebbs and flows, and is not yet won.
First, data protection. There was a hearing a few days ago in a case involving Google and Spain before the European Court of Justice. Spain claims to have over 180 ‘right-to-be-forgotten’ cases involving Google. This case (C-131/12) is based on a complaint by a man who found a newspaper announcement on Google from several years earlier saying a property he owned was up for auction because of non-payment of social security contributions. Spain's data regulator asks whether EU citizens have to go to US courts to exercise their privacy rights, and whether Google ‘is responsible for the damage the diffusion of personal information can cause for citizens’. Google argues it should not have to erase lawful content which it did not create. The advocate-general will publish an opinion on June 25, with a ruling expected by the end of the year.
Then there is the EU data protection package, about which I wrote recently. I called it ‘Becoming excited about data protection’, and that was prescient, because the internet monsters have become very excited about it indeed. It has been called the most intense lobbying campaign ever of the European Parliament, with the monsters mounting overwhelming exercises. Someone has been tracking the effect of amendments from companies like Amazon and eBay, alleging that, among others, well-respected UK Conservative MEP, Malcom Harbour, took up to 25% of his proposed amendments directly from monsters’ briefings – a cut-and-paste-job effectively – which he has tried subsequently to justify. The future of our data protection will be decided in this legislation.
And finally the EU is worried about Google’s data collection policy, which was changed last year, allowing it to collect data from across all its properties, including Gmail and YouTube, into a single data store. Google is now to be summoned to explain why it has not yet satisfied EU concerns.
Second, competition. The EU’s competition authority is continuing to consider action against Google. The US Federal Trade Commission recently limply let off Google from the complaint that its search engine favours the company’s commerce and other services in search queries, so frustrating competition. But the EU is still looking at the same issue, and has the potential to impose a large fine. Different standards apply between the US (conduct can be justified in the name of efficiency) and the EU (where abuse of a dominant position is the test). Of course, this is partly the case of monsters fighting among themselves, since Microsoft is one of the complainants against Google.
If you tap ‘EU and Google’ into Google’s own search engine, you can find out much of this information. Thank you, Google. In fact, the monstrosity does not go all one way. Google’s own latest Transparency Report, released late in January, showed that requests by European governments for the browsing history, email communications, documents and IP addresses of Google's users have boomed over the last three years. Countries in the EU made 7,254 requests about 9,240 users or accounts between July and December 2012, averaging over 1,200 requests a month. This represents over a third of all requests made by governments worldwide over the period, and a 100% increase over the past three years. So the very governments which are clubbing together in the EU, supposedly to protect our interests against the monsters, are using the same monsters for their own interests.
If you tap ‘UK and Google’ into the same search engine, however, you can see only one substantive interaction. When ‘Don’t be evil’ Google’s executive chairman, Eric Schmidt, was told that the natives were restless in one of his minor colonies, the UK, about the fact that Google was paying less tax than might be expected, he effectively gave us the finger: ‘It’s called capitalism.’
My point is that the UK alone, through no fault of its own, is not in a position to look after us against the monsters. We have borders, they do not. Group action by a number of countries is obviously more effective. As we have seen, that is not a perfect solution. But I believe it is better than the alternative. If EU law does not save us from the monsters, nothing will.
Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents about one million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs