By David A. Goldman and Miriam Hirschman
As many readers may already be aware, the
EU’s Court of Justice (EUCJ) has recently issued a
ruling on the right to be forgotten that allows for private EU
citizens to request certain links (search results) be taken
down if they meet the court’s criteria. As many as
70,000 – 80,000 requests have been submitted already
and the story is constantly developing as Google and the media
affected by the ruling have begun reacting to it.
As hedge fund managers are often the target of
negative and inflammatory articles in the media, this recent
and unprecedented ruling may indeed be of use to some managers.
The following article presents a close look at this development
and presents the facts of the ruling, as well as the potential
payoffs and risks as they relate to hedge fund managers.
What exactly is the Right to Be
In May 2014, the highest court in the European
Union, the European Court of Justice (ECJ) issued a ruling
upholding European Union member state citizens’
"Right to be Forgotten" (RTBF). This ruling indicated that
European citizens have the right to influence information that
is available about them online. As such, search engines
– such as Google – must accept and review
requests to remove unfavorable search results under certain
According to information about the ruling released by the
European Commission, "individuals have the right–
under certain conditions – to ask search engines to
remove links with personal information about them. This applies
where the information is inaccurate, inadequate, irrelevant or
excessive for the purposes of the data processing."
Also made clear in the ruling, however, is that
this right is not absolute and "will always need to be balanced
against other fundamental rights, such as the freedom of
expression and of the media." Thus, "[a] case-by-case
assessment is needed."
To whom does the ruling
Only individuals – and not companies
– have a right to be forgotten. As a result, the
ruling only applies to individuals. Moreover, it only applies
to citizens of the European Union.
Therefore, for example, a hedge fund principal who
is a French citizen may petition Google to have results removed
from searches on his name in Europe, regardless of where his
hedge fund is located. However, a US citizen (who is not also a
citizen of an EU country) could not make a similar request,
even if he works for a European hedge fund.
What online content is affected?
What’s being taken down?
When a person submits a removal request, they must
indicate the specific links they want to have removed from
their search results. These might be, for example, links to
news articles or blogs that mention them, sites where they have
made comments, directory listings, sites with pictures of them
or related to them, to name a few.
If the request is approved, Google will remove the
link(s) to the content in question from all of Google's EU
based domains (e.g. google.de, google.fr), but the links
continue to be fully accessible from Google domains that
aren’t Europe based, such as google.com, as well
as on non-Google search engines who have no presence in the
Moreover, the actual content is not removed from
the Internet at all, only the link to it on a specific search
results page goes away. For example, an article published on
the Financial Times website will continue to exist on the
FT.com website even if links to the article are taken down from
a Google search. In essence, that means the article could still
be found from a US or Asia based search, a search directly on
the Financial Times site, and even from a search done in Europe
on the Google.com domain.
What has Google done so far based
on the ruling?
Despite its strong objection to the ruling, Google
has nonetheless worked quickly to be compliant.
- Shortly after the ruling was issued, Google published a
request form to start accepting takedown request. They
reported an initial flood of requests – over 40,000
in the first week – that has tapered off to about
1,000 per day.
- Google has assembled two teams to address implementation
of the ruling. The first team is a group of paralegals who
are tasked with individually reviewing and making a decision
about each removal request Google receives. If a request is
turned down, the petitioner has the option to advance the
request to their local country’s data protection
authority who will have final say on the issue.
- The second is an advisory
council comprised of privacy experts, regulators,
academics, and business executives. It will be their job to
discuss the many and varied implications of the court ruling
in order to help evolve Google’s policies. The
council is also soliciting public input to inform their
- Google has begun flagging search results for
people’s names with the following notice:
In the immediate wake of the ruling, many assumed
this notice would be used just on results pages where links
actually had been removed – as Google does for
copyright infringement removals. In fact, Google has revealed this notice appears "in Europe when a
user searches for most names, not just pages that have been
affected by a removal."
Have EU-based hedge fund managers
begun to use the right to be forgotten?
In looking specifically at names of some hedge fund
principals, as of this writing, searches on 50 names of leading
(AUM) European hedge fund principals showed just over 60% of them with this notice on their search results
This data would indicate that some have requested
link removals. However, since Google admits that not everyone
with a notice of removal has been affected by a removal there's
no way for us to know for certain which fund managers have
applied for link removals under the right to be forgotten.
Are there any risks to requesting
Yes. As of June 26, 2014, Google started removing results on
its European sites based on requests received. Above and beyond
what the ECJ’s ruling requires, Google has been
informing the authors of the content whose links have been
Much to the chagrin of the ECJ and those requesting removals,
several reporters have decided to strike back by writing new
stories that reference the old removed content and undermining
the goal of the takedown request. The removal then becomes the
story as we have seen in many cases like this one or this one. Inevitably, this brings new attention
to the very content the petitioner wanted hidden.
The notice the publication
receives is the following:
What about Bing and the other
Initially, Bing, Yahoo, and other search engines
took a more passive approach to compliance with the ruling,
seemingly waiting to see what Google would do. Their market
share in Europe is far smaller than Google’s so
they were unlikely to get the torrent of requests Google did.
As of July 16, Microsoft started accepted removal requests via
their own form.
Is this approach appropriate for
hedge fund principals with unfavorable online
As with all complicated issues, the answer is
– it depends. A hedge fund manager considering
applying for link removal would do best to consider both their
likelihood of qualifying and the implementation and impact of
Issues related to to the first area –
their qualification – are twofold. Firstly, only
individual citizens of EU countries can apply. Secondly, a
hedge fund principal needs to assess whether they may be seen
as a public figure.
The case-by-case review process weighs two opposing
considerations. As Google's request form states: "When you make
such a request, we will balance the privacy rights of the
individual with the public’s interest to know." In
the case of a public figure, the latter consideration (the
public’s right to know) usually takes precedence
and a removal request from such a person would likely be
Regarding how the removals are implemented and
their potential impact – this is more an issue of
individual risk tolerance. As some of the earliest cases have
shown, Google’s link removals thus far have had
the (perhaps) unintended effect of spotlighting the removed
content rather than making it go away. However,
it’s unlikely that subsequent removals will get as
much media attention as the initial removals as time
progresses. No one knows exactly when the media will grow tired
of reporting on every notice of removal they receive in the
coming weeks and months.
Nonetheless, a major aspect of the removal is that
it takes place only on Europe search domains.
Even if a European hedge fund manager goes through the removal
process and gets approval, anyone searching outside of Europe
(e.g. on Google.com) will still see those results.
Today’s business environment is global
and the uneven implementation of this ruling – in
Europe only – raises questions about international
implications. Can the ruling be effective if implemented only
in Europe? Will other countries follow suit? It is still too
early to say whether this is an effective way for executives to
influence their online reputation as it appears in Europe, but
there will no doubt be some interesting discussion across the
world in the online privacy area on the heels of this
For more information, please see our special
report on the ECJ’s Right to be Forgotten
David Andrew Goldman is the chief
strategy officer at Five
Blocks, a technology and digital consulting firm with a
focus on online branding and reputation for companies and high
net-worth individuals. Miriam Hirschman is the research manger
at Five Blocks and helped research and write this