Owen
The google case judgement is available here: http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d0f130d53540236540c84a4697a88182152f7368.e34KaxiLc3eQc40LaxqMbN4OaNmQe0?text=&docid=152065&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=99629
As you may well know the AG Opinion that preceded this (last June) agreed with you (and the gardener analogy). This view was rejected by the court of course. On strict language of the Directive, the court was right to do so, I think. The definition of the keep terms of "processing" does include the Google index (it does collect, etc, "personal data"). Who else "controls" that index if not Google. However, and this underpins the AG's opinion, that does lead to the ridiculous result of Google being a "data controller" subject to all legal requirements when - frankly - it doesn't care whether or not the plants it is pruning is a weed or useful (to extend your analogy).
I know there are tons of articles on this already (and more to come), but mine is available through this link for anyone interested: http://www.dechert.com/Court_of_Justice_of_the_European_Union_Finds_Individuals_Have_a_Right_to_be_Forgotten_Under_Data_Protection_Law_05-14-2014/
Renzo
Renzo Marchini
Special Counsel
Dechert LLP
+44 20 7184 7563 Direct
-----Original Message-----
From: This list is for those interested in Data Protection issues [mailto:[log in to unmask]] On Behalf Of Owen Thomas
Sent: 19 May 2014 13:19
To: [log in to unmask]
Subject: Re: [data-protection] Google, SARs and automated processing, any experience?
In the EU Google case I think there's a bit of a chicken / egg case involved that the Court might have missed (haven't read the whole judgement as have not been able to locate it yet) and it hinges on the issue of intent.
Google's algorithms make their decisions irrespective of whether the data they're sorting is personal, impersonal or whatever. It is, to use a very clumsy analogy, like a garden shredder: it will eat / process whatever is fed to it. It is the Gardener who chooses whether to shred or to re-plant who's making the decisions.
Translate back to the electronic world and Google is just a machine that will process whatever's uploaded to the web: it seems to me that it's the people who decide what goes web-side, why, when, whether it can be forwarded etc are the ones that the Court should have been looking at.
Owen
-----Original Message-----
From: Lawrence Serewicz [mailto:[log in to unmask]]
Sent: 19 May 2014 12:51
To: Owen Thomas; [log in to unmask]
Subject: RE: Google, SARs and automated processing, any experience?
Owen,
An interesting point and one that makes me wonder what is meant by "reliability" and "conduct" given that Google searches do appear to be providing evidence regarding both of those, which is why people are searching google.
Moreover, how google's algorithms work is not something that the searcher can decide. The structure of the algorithm and the search system is under the direct control of Google which I would suggest makes that an automated system as it acts in a consistent way irregardless of the instructions. A truck does not stop being a truck because an amateur is driving it or if a professional is driving it.
Best,
Lawrence
-----Original Message-----
From: This list is for those interested in Data Protection issues [mailto:[log in to unmask]] On Behalf Of Owen Thomas
Sent: 19 May 2014 11:46
To: [log in to unmask]
Subject: Re: Google, SARs and automated processing, any experience?
Well, 'automated processing' - yes. 'Automated decision making' might be a bit of a stretch.
Section 12 concerns itself with decisions "... taken by or on behalf of the data controller which significantly affects that individual is based solely on the processing by automatic means of personal data in respect of which that individual is the data subject for the purpose of evaluating matters relating to him such as, for example, his performance at work, his creditworthiness, his reliability or his conduct" which seems a questionable claim for a web-search.
Unless I'm missing something, the only default 'decisions' that Google
(etc) takes are 'what results match the question I was asked?' and 'which of these results will make us most money under our contracts with corporations?'. A user might be presented with different search results in different priorities based on the criteria they've applied to the search (i.e. search tools etc), but that suggests to me that the resulting 'search / presentational decisions' are even less automated and are, instead, a response (albeit a very clever one) to a filing request.
Owen
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