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 conditions.
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
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 EU.
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
- 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 removed.
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 their
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
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 denied.
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 ruling.
For more information, please see our special
report on the ECJ's Right to be Forgotten Ruling.
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