Content Regulation / Censorship, Political Expression
Zhang v. Baidu.com, Inc.
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The Court of Amsterdam rejected an application that Google remove links to the plaintiff after he had been secretly recorded and subsequently convicted for solicitation to commit murder. The solicitation was broadcast on the Dutch program, Crime Reporter, and the plaintiff’s first name and first letter of his last name disclosed. Several other media reports followed and many links to the story became available on Google. The plaintiff relied on Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González (2014) where the ECJ had held that Google had to remove any links of past actions, criminal or otherwise, that were “irrelevant,” “excessive,” or “unnecessarily defamatory.” However, the Amsterdam Court distinguished the Costeja opinion, holding that none of these three categories of links applied to the plaintiff. In particular, the Court said that negative publicity as a result of a serious crime is generally permanently relevant information about a person and the plaintiff’s privacy rights must be weighed against the public’s and Google’s right to freedom of information.
On May 27, 2010, a broadcast of the Dutch program Crime Reporter was shown on SBS 6. During that broadcast, the show’s host, Peter R. de Vries, revealed that he had captured the plaintiff, who was involved in the escort business, attempting to solicit the murder of one of his competitors. The events had been recorded on a secret camera embedded in a ballpoint pen. The show never referred to the individual seeking the solicitation by his full name, although it did reference his full first name and the first letter of his last name. After being charged, the plaintiff in this civil matter was convicted and sentenced to six years in prison.
Several ancillary media reports were published after the broadcast of Crime Reporter. These further reports followed in the footsteps of the SBS 6 broadcast and never identified the plaintiff by his full name. As a result of this media attention, many links to the story became available on Google and, by searching for Mr. de Vries’ name, Google would “autocomplete” the search and include the name of the plaintiff. Additionally, a semi-fictional book which used the name of the plaintiff was published and available on major online booksellers including Amazon and AbeBooks.
As a result of the Google links and autocomplete, the plaintiff’s attorney wrote to Google on June 14 and July 24, 2014, requesting the takedown of all links mentioning the plaintiff’s name. Google partially complied by taking down links containing the plaintiff’s full name, but it refused to remove the links to the online booksellers. As a result, the plaintiff filed suit seeking to rectify, erase, or black out any URL that contained his full name and a reference to his criminal solicitation. The plaintiff also sought to remove any reference to removed links and the autocomplete which linked Mr. de Vries’ name to the plaintiff’s name.
As a preliminary matter, the Amsterdam Court noted that restrictions on Google searches should be implemented with restraint since Google and other search engines serve important social functions such as access to news and information. That said, the Court stated that its analysis would involve balancing the plaintiff’s privacy rights against the public’s and Google’s right to freedom of information.
The Court’s analysis was clear and straightforward. Simply put, it held that since the plaintiff had been convicted of a serious criminal offense – the solicitation to commit murder, he now had “to bear the consequences of his own actions.” Such consequences included having his name published on the Internet with a reference to his crimes or having semi-fictional books written about him. Google had no obligation to remove links related to the plaintiff’s actions or information about them.
The Court discussed the European Court of Justice’s May 13, 2014 opinion in Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González (2014) in depth. There, the ECJ held that Google had to remove any links of past actions, criminal or otherwise, that were “irrelevant,” “excessive,” or “unnecessarily defamatory.” However, the Amsterdam Court distinguished the Costeja opinion from the facts at bar, holding that none of these three categories of links applied to the plaintiff. First, the links were not irrelevant since the public had a right to information about the plaintiff’s crimes and any accounts written about them. Second, the links were not excessive since there were only three links which the plaintiff wanted removed. Third, the links were certainly not unnecessarily defamatory since there was no false information contained in the links.
The Court also rejected the plaintiff’s request that Google remove any reference to links that had been deleted pursuant to takedown requests or European law. Or, in the alternative, to customize its autocomplete feature. In doing so, the Court noted that there was no legal basis for prohibiting the posting of such notices or implementing search features like autocomplete. Generally, the Court also concluded that there was no basis for “anonymizing” a criminal defendant in every case, especially when the defendant is found guilty and sentenced to prison.
The Court awarded costs in favor of Google.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Amsterdam Court’s decision expands expression by favoring the public and Google’s freedom of information over the plaintiff’s privacy rights. It also points out that the conviction for a serious crime and the resulting negative publicity are generally permanently relevant information about an individual and that that individual must bear the consequences of his own actions.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
This ECJ case was discussed in depth and eventually distinguished from the facts at bar by the Amsterdam Court.
Case significance refers to how influential the case is and how its significance changes over time.
As a trial court opinion, the case could set important persuasive precedent for other Dutch courts or even other European courts.
Let us know if you notice errors or if the case analysis needs revision.