Hedge funds, Google, and the "Right to be Forgotten"

Mon Jul 21, 2014

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Weiging the risks and rewards of using the “Right to be Forgotten” (RTBF) ruling for hedge fund managers


 
   
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 Forgotten?

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 apply?

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 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 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 discussions.
  • 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 page.

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 link removals?

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 search engines?

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 content?

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 removal.

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 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 article.

ISSN: 2151-1845 / CDC10004H