Report on the Field Trip to Media Day in Hamburg
On April 20, 2018, a media law field trip was held to Google’s legal department and a media law firm in Hamburg on the topic of “Freedom of Information and the Right to Be Forgotten.” Eight students from Siegen enrolled in the “German and European Business Law” program received a field trip grant from Faculty III to participate. Prof. Rösler and two staff members from the IMKR also took part in the visit. Just like the 9th International Media Law Forum (IMLF) held on May 18, 2017, in Siegen (Kiofsky, ZD-Aktuell 2018, 04275), the Media Day was organized in collaboration with the German-American Lawyers’ Association (DAJV).
1. The program began with a visit to the legal department of Google Germany GmbH. Lutz Heidelberg, LL.M. (Cardozo), Legal Counsel, began by introducing the company. Google’s search engine receives trillions of search queries worldwide each year and has now indexed over 130 trillion web pages. YouTube, Google Maps, Google Play, and numerous other applications and initiatives are also managed by approximately 85,000 employees at 70 locations in 50 countries worldwide. Among the approximately 500 employees at the Hamburg location are 14 lawyers. They focus in particular on negotiations and contracts related to media, copyright, IT, data, and trademark law. The legal department also handles several – often long-running – legal disputes all the way up to the highest court.
He was followed by Julie Wahrendorf, LL.M. (Sydney), Senior Legal Counsel at Google Germany, who had previously spoken at the 9th International Media Law Forum in Siegen (see the report). She explained the landmark “Google Spain” ruling by the European Court of Justice (ECJ) on the right to be forgotten, which is enshrined in Article 17 of the General Data Protection Regulation (GDPR), effective since May 25, 2018. The participants discussed several requests for deletion, such as that of a former student who had been actively involved in a political college group for a short time. At a later date, he rejected that political stance and no longer wanted to be found on Google in that context.
Google maintains that the public retains a strong right to information even under the GDPR and that individuals do not have an absolute right to control their own information. Google follows a practice that respects privacy rights and consistently complies with requests for deletion in cases of obvious legal violations. To this end, web forms for deletion requests were implemented that ask for grounds for complaint relevant to the decision and, in accordance with Google’s own “removal policy,” weigh and decide on each individual case. In addition, an expert advisory board on the right to be forgotten was established, which consulted with local experts in seven European countries regarding the handling of the right to be forgotten and subsequently published a report. Furthermore, the company collaborates with European data protection authorities in the event of complaints in individual cases and publishes transparency reports – including those regarding the right to be forgotten – on deletion rates and categories of the information in question. Of the more than 112,000 deletion requests received so far across Germany – involving over 425,000 individual URLs – there have been only a handful of court cases seeking to block search results containing personal data based on the right to be forgotten. In its ruling of February 27, 2018, the Federal Court of Justice (BGH) upheld the rights of search engine operators: They are under no active obligation to review for violations of personality rights prior to linking. A duty to act arises only after being notified of obvious violations that are clearly recognizable at first glance.
Finally, Wahrendorf emphasized that blocking search results does not delete the content itself, but merely removes the link to the content. In response to a data protection complaint under European law, the disputed search results are blocked only in the European versions of the Google search engine, and geoblocking technology is used to prevent search results from being found on all country-specific versions of the search engine worldwide for search queries originating from the complainant’s country. Two preliminary ruling proceedings are currently pending before the ECJ: one concerns the scope of the right to be forgotten (C-136/17), and the other addresses the question of whether the right to erasure applies worldwide (C-507/17).
2. In the afternoon, the group visited the international law firm Quinn Emanuel. After a welcome address by Dr. Nadine Herrmann, LL.M. (Sydney), Managing Partner at Quinn Emanuel, Prof. Dr. Rüdiger Lahme and Joachim Lehnhardt, counsel at the firm, presented antitrust and data protection issues from their practice. For example, the principles of freedom of speech and freedom of the press apply in the U.S., according to which – within certain limits – anything may initially be said and published freely. The State of New York, on the other hand, is currently the first U.S. state to be drafting a law on the right to be forgotten.
The two speakers then explained pre-trial discovery, which is permitted under Anglo-American law and can also have legal effect in Germany. Accordingly, under the U.S. Federal Rules of Civil Procedure, companies worldwide may be compelled – as part of the evidence-gathering process – to preserve and produce information relevant to the decision, even if this is prohibited under the national laws of the company in question, the company itself is not a party to the case, or liability is still uncertain (so-called “fishing expedition”). This regularly results in the disclosure of personal data, which inevitably leads to conflicts due to national and European data protection laws.
3. In conclusion, Prof. Rösler provided an assessment of the day’s data protection issues. He recalled the scandal that came to light in March 2018 involving the analysis of Facebook data sets by the company “Cambridge Analytica,” which were specifically used in the U.S. presidential election campaign. This demonstrates the power of big data. While personalized advertising is already the norm today, Big Data could predict people’s behavior even more accurately in the future, influencing and manipulating users. In light of the political dimension of the scandal, Prof. Rösler recognizes a growing global awareness of the power of algorithms and welcomes the increasing sensitivity among lawmakers as well. He stated that it is appropriate to hold intermediaries who provide access to data or information platforms more accountable.
Prof. Rösler linked this not only to the so-called “right to be forgotten,” but also to the Network Enforcement Act (NetzDG), which has been mandatory for social media providers since January 1, 2018. It is aimed at combating hate speech and fake news on social networks. Under § 3(2) NetzDG, the law requires companies to review and block illegal content, generally within one to seven days of receiving a complaint. The key factors determining the deadlines and any extensions are the obviousness of the illegality, any contrary agreements with law enforcement authorities, or the need to obtain statements from relevant parties. Violations by providers can be punished with fines of up to 5 million euros under § 4(2) NetzDG. However, Prof. Rösler considered the fact that the companies themselves decide whether to remove or retain content to be, at the very least, worth noting. There should not be an excessive removal of information relevant to the formation of public opinion, as companies might have incentives to do so in order to avoid lawsuits and costs.
In addition, a short report on this topic has been published in the university magazine, which you can access here (in German).
