Costeja González, Nissim Ourfali and the Streisand effect: opening the way to Privacy by Design

Mr. Mario Costeja González and Nissim Ourfali (represented by his family) are two individuals who were unhappy with the online publicity received by some of their personal information and initiated lawsuits against Google in order to remove it from the search engine and from YouTube, respectively.

The legal grounds of the lawsuits are different and until now, Mr. Costeja has completely won the legal battle and Nissim Ourfali's family has been successful in their appeal to the Brazilian Court ("Tribunal  de Justiça") although it's still possible for Google to appeal to a Superior Court.

Both cases, although seemingly legally successful, brought the Streisand Effect for its authors. For those who are not familiar, this is the phenomenon whereby an attempt to hide, remove, or censor a piece of information has the unintended consequence of publicizing the information more widely. It was named after the entertainer Barbra Streisand tried to remove pictures from her residence in Malibu, California, from the website Pictopia.com. The photographer Kenneth Adelman wanted to photograph the coastal erosion as part of his California Coastal Records Project, and ended up  also photographing the entertainer's house. Before the lawsuit the picture of the house had been downloaded only six times (two of them by Streisand's lawyers); after the public knowledge of the case in the following month more than 420,000 people visited the website. Streisand lost the case.

From these two cases, both dealing with a request for censorship of private information legally available online and suing Google, the Streisand Effect was almost a natural consequence. In the next lines my plan is to comment the two cases and analyse what we have learned from them.

The "Costeja" case

In 2009 Mr. Costeja noticed that when he typed his name on Google's search engine, one of the first results was the announcement, in the Spanish newspaper La Vanguardia, in 1998, of a forced sale of his property because of social debts. Mr. Costeja then contacted the newspaper to complain, saying that the sale had been concluded many years before and that it was no longer relevant. The newspaper responded that the removal was not possible because the publication had been requested by the Spanish Ministry of Labour and Social Affairs.

Mr. Costeja then contacted Google Spain in 2010 requiring that the links to the newspaper publication be removed from the search engine. Google appealed, bringing privacy and data protection arguments, but the final ruling was that "an Internet search engine operator is responsible for the processing that it carries out of personal data which appear on web pages published by third parties, upholding a right of erasure". Regarding the "right to be forgotten", the Court held that upon request, data which is "inadequate, irrelevant or excessive" must be erased, and that it is not necessary that the information is prejudicial to the data subject.

The case brought a strong repercussion and after that, Google issued a form to be filled by everyone who "wanted to be forgotten" (only applicable to certain countries) and in the first day received more than 12,000 submissions.

Regarding the Streisand effect, Mr. Costeja today is worldly known among tech lawyers and privacy professionals as the man from the "Costeja case", which had a publication about the forced sale of his property erased from Google. Moreover, although the original publication regarding the forced sale is not available on the search engine anymore, we still can find the original publication on La Vanguardia's website and we also know its content from many alternative sources. We don't know if he wanted it or not, but he is now much more famous than before the lawsuit, having and average of 800 monthly searches looking for his full name on Google.

The "Nissim Ourfali" case

Nissim Ourfali is a Brazilian boy who made with his family a video for his Bar Mitzvah. His parents set the video public on YouTube so that all the family could see it and after one week it had already gone viral, with more than 1 million views.

The family removed the video from YouTube, but many copies had already been made (today the search for "Nissim Ourfali" on YouTube shows 7,910 results).

In 2012 the family sued Google, asking the company to remove all copies of the video available online. The company defended itself saying that it could only remove if the author specified the URLs that should be removed. In 2014 came the first instance decision in favor of Google, saying that it would be impossible to find and remove all the copies of the video available on YouTube and that the father should have posted the video on YouTube in "private" mode.

Nissim's family appealed and in March 15th 2016, less than two weeks ago, the Court reverted the initial decision saying that Google has to remove all copies of the video, even if the authors don't specify previously the URLs.

After being notified of this decision, Google stated publicly that it will appeal. For the company, the Court didn't observe de precedent set by a hierarchically superior Court (STJ) on the subject, as well as the "Marco Civil da Internet" (a Brazilian law governing the internet) both which determine the party has to previously specify the URLs that they want to have removed. Moreover many of the videos can't be removed because they are parodies and in this case, according to article 47 of Brazilian Copyright Law, they might be considered new original works thus deserving copyright protection.

In the Nissim Ourfali case we can also observe the Streisand Effect: every time any news about the family's lawsuit against Google comes up, more people are interested in the video, more people talk about it and more versions and parodies of it are uploaded on YouTube. Before it was a popular video only in Brazil and now, the more the lawsuit lasts and the parties continue appealing, the "Nissim Ourfali" case is spreading and becoming news worldwide, resulting in more people curious to see the video. And that certainly wasn't the initial plan of the authors of the lawsuit.

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Nowadays we are still figuring out how legal provisions such as "right to be forgotten" will work out, which precedents will be set and also how do we want "censorship" or "legal removal" provisions to be (and how to balance right to privacy and right to information).

Surprisingly (or not), it seems that at this moment the private sector has more control of what is and what isn't censored than the government and law makers:

a) It's Google (and other search engines) who defines what claims for removal are accepted or not; if the person is unsatisfied there is always the Judiciary, but not everyone is able to afford it;

b) It's Google (and other search engines) who defines the search engine's algorithm (what could materially alter which websites are showed in the first pages and which ones are showed after the 2nd page - what would be almost like not being showed at all);

c) It's Facebook (and other social networks) who define what images, communities, pages, profiles, groups, links and texts are censored, according to their community guidelines (again, there is the option of accessing the Judiciary, but not everyone will have material access to it);

For any claims, in the case of violation of rights, there will be the possibility of accessing the Judiciary, but it's costly, complex and it takes time, so we might say that for many people it will not be a viable choice.

"Costeja" and "Nissim Ourfali" cases are examples of how the private sector is having more control over what can and can't be done online than the government itself: courts have ordered Google to remove the original content from the search engine; nevertheless, courts can't order that people, exercising their right of free speech and right of information, stop talking or posting about it, as I am doing here. The only ones that technically could impose an "absolute censorship" are the companies that provide the technology, but if we still want to live in a democracy and in a free market, they can't and won't do it (and we are glad for it).

This is only the beginning of a long debate over right to information and right to privacy. The more technology evolves, the more companies know about its customers and also, in many cases, the more customers know about other customers. This has also enabled that many products that we use frenetically today, such as our email or our social networks, can be free. We exchange the right to use them for our personal information, and we got addicted to sharing information.

We can always say that whenever the publicity of an information generates infringement of a right, it's not fair that this information remains public. But Law is not Mathematics and there is not a perfect coefficient to find whether there was a real infringement or if it's an abuse from the author of the claim. It's an issue of establishing legal thresholds, therefore it's an issue of politics: what do we want the threshold to be? What do we want the internet's legal framework to be?

I personally think that the guidelines Google has been using to deal with claims under "right to be forgotten" are reasonable and can serve as a model to further regulation. It's a good example of  the private sector adequately collaborating with the government and law makers. Much still need to be discussed and in the "Information Technology era" every technology company should be involved in the debate "right to privacy vs right to information".

Meanwhile, people should know that it's technically impossible to eliminate completely any information from the internet, mainly after it became popular in the "real world". If people want to talk about it, they will find a way. You can obtain one thousand court orders to remove the content from one thousand websites, but if people are still interested in the information, they won't stop uploading and posting about it. It's possible to remove the original content and it's copies from big websites - what can be already very effective in protecting someone's privacy - but eliminating the information forever is unfeasible - nobody can (and absolutely shouldn't) censor all internet users in the world.

The internet has technical specificities that should be learned by everyone since childhood. The more we learn how it works, the less we have our rights infringed online. The government and private companies should work on teaching people about risks and dangers of online activities and focus on developing softwares and hardwares that are designed with privacy concerns on it. This is called "privacy by design".

Let me finish with a metaphor. The internet is like a swimming pool with infinite bottom: we had to learn how to swim before jumping in alone and without floats, otherwise we could have drowned. Meanwhile, swimming pool manufacturers learned that they needed to enhance the product, designing stairs, handrails and shallow areas so that those still learning how to swim could also enjoy without drowning. Internet users need to learn how to swim; government and private companies must work together to provide stairs, handrails and shallow areas.

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Best,

Luiza Rezende
Tech Lawyer, YouTuber and Writer

technology, privacy ,right to be forgotten