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Saturday, September 28 • 4:45pm - 5:20pm
Search Engines after 'Google Spain': Internet@Liberty or Privacy@Peril?

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The exponential growth of social media, and the Internet in general, has lead to a massive increase in the amount of personal data that can be found online. While disclosure of personal information is a logical byproduct of social activity, the extended longevity and broad accessibility of this information has given rise to specific reputational concerns. More and more, individuals are finding it difficult to "escape their past" or experience embarrassment when their personal information is taken out of context. Putting a stop to unwanted disclosures can be difficult however, particularly in the online environment. The entity responsible for the disclosure (or further dissemination) of personal data may be hard to find or reside in a different jurisdiction. Moreover, this person might invoke a right to freedom of expression; or brush aside defamation claims because the information is true. This is why - especially in the EU - Internet intermediaries (search engines, social networks, hosting platforms, etc.) are solicited more and more to help put a stop to the further dissemination of this data. Such requests place intermediaries in a very awkward position. They are, in effect, confronted with three sets - a triangle if you will - of competing interests: the privacy interests of the person requesting removal, the freedom of expression interests of the discloser/distributor, and the interests of the intermediary to remain exempt from any liability resulting from the dissemination of injurious content. A notice and takedown solution - similar to copyright enforcement - seems reasonable at first, but raises significant concerns when looked at more closely. Can (and if so, should) intermediaries be asked to make the balance between freedom of expression and privacy? If so, how should this balance be made? Can risks of "systematic take-down" be sufficiently mitigated to ensure freedom of expression is not unduly curtailed? These issues lie at the heart of Google v Spain (C-131/12), a case which is currently pending before the Court of Justice of the European Union (CJEU). The objective of this paper is to analyze, from a European perspective, the interaction between three branches of law, namely privacy, freedom of expression and the liability of intermediaries. Throughout this analysis, the Google v Spain case will serve as a frame of reference. Where relevant, comparisons will be made with the situation in the US, where most of these intermediaries are headquartered. It is planned that this paper will be finished around the time of the CJEU?s final judgment (late summer/early fall), which ideally could also be presented at TPRC. The eventual goal of the paper will be to provide a comprehensive overview of these issues and come up with clear policy recommendations on how to move forward.

Saturday September 28, 2013 4:45pm - 5:20pm PDT
GMUSL Room 332

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