Comment Google's efforts to claim that it should be exempt from EU data protection laws because its search engine is "journalistic" really did not impress the judge in the Right To Be Forgotten trial.
As we reported from the trial, one of the main planks of Google's defence in the RTBF trial amounted to the advertising technology company claiming that its search engine is "journalistic" in nature.
This, argued Google, should mean that it benefits from the exemption at section 32 of the Data Protection Act created for journalists, passed specifically to stop wrong'uns from bleating about breaches of data protection in a bid to stifle media reports about their activities. Until recently, that worked as intended – though in the last few years, sneaky lawyers have been finding ways and means of deploying data protection as an anti-media weapon anyway, despite the exemption.
For an entirely non-journalism business to have the chutzpah to claim it was covered by section 32, however, left quite a few people scratching their heads. Among those people were none other than the UK Information Commissioner, Elizabeth Denham, who instructed lawyers to tear into Google's legal arguments. The court submission in her name said: "The concept of 'journalism' presupposes a process by which content is published to an audience pursuant to the taking of human editorial decisions as to the substantive nature and extent of that content."
In other words, she argued, Google cannot claim that it is a neutral caching service while simultaneously claiming a legal exemption designed for processes that are definitely not straightforward, neutral caching.
The ad tech firm, as everyone knows, has gone to great lengths to tell the world that it doesn't fiddle with search results – even though the prominent placement of Wikipedia as the top result for most searches, to give one example, certainly isn't a happy coincidence.
In his judgment from last week, Mr Justice Warby took some time to examine and dismantle Google's claims about Search being a journalistic enterprise, ruling, very clearly: "In my judgment, Google's case on the Exemption Issue fails at this threshold stage."
What's that threshold, then?
"It is submitted," said the judge, "that the process of making search results available is 'for the purpose of' enabling users to access third party publishers' content which discloses information, opinions and ideas."
While barrister Hugh Tomlinson QC, acting for both NT1 and NT2, had told the court in his summing-up speech that "it is not entirely clear whether your lordship needs to decide this issue", Mr Justice Warby nevertheless devoted a relatively short but clear section to the issue in his full judgment (76 pages, PDF).
The judge added, summarising Google's barrister Antony White QC: "The argument is that the information available at the URLs complained of in this case consist of journalistic material published by third parties, and Google's role is undertaken 'with a view to' such publication, facilitating publication by the third parties." He added, in judicial deadpan mode: "This narrower argument can be characterised, without disparaging it, as parasitic."
Tomlinson's riposte to an earlier legal argument about Google doing journalism was simple: "If [Google Search] is [published for a] journalistic, literary or artistic purpose, then everything Google does falls within the exemption," meaning Google would have bagged a historic get-out-of-court-free card if the judge agreed with them. Any legal claim that Google was breaking EU data protection laws would have been impossible to get through an English court. And for Mr Justice Warby, that was a legal step too far:
Whatever the nature of the search in question, when Google responds to a search on an individual's name by facilitating access to journalistic content about that individual, this is purely accidental and incidental to its larger purpose of providing automated access to third party content... That is a commercial purpose which, however valuable it may be, is not undertaken for any of the special purposes, or 'with a view to' the publication by others of journalistic material... Such processing is undertaken for Google's own purposes which are of a separate and distinct nature.
Clearly it was nonsense for Google to claim that its search engine is in any way journalistic, though judicial confirmation that the company's operations are essentially "parasitic" is good to have. While many good (and not-so-good) journalists rely upon Google daily to find information, the ad tech firm is not necessarily a friend of the media.
The predicted wider impact of the RTBF judgment as a landmark win for individual rights against Big Tech may not materialise, depending on how the UK's exit from the European Union goes. Judgments in the English courts using EU law are unlikely to be regarded as binding by Brussels, and while in the short term EU law will continue to apply in Britain, the legal complications of judgments being formed based on laws that are a mish-mash of domestically transposed EU regulations are going to keep our learned friends from the legal profession in clover for years to come.
Google has not responded to The Register's questions as to whether it will file an appeal against the case it lost, that of NT2. Similarly, it is not known at this stage whether NT1, who lost his own case against Google, intends to appeal. ®