WEBVTT - Google Continues Fight Against `Right to be Forgotten'

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash podcasts. The right to

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<v Speaker 1>be forgotten is a distinctly European right, and Google wants

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<v Speaker 1>to keep it that way. Four years ago, the European

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<v Speaker 1>Union's top court rule that Google has to remove links

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<v Speaker 1>to information about a person on request if it's outdated

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<v Speaker 1>or irrelevant. Now Google is heading back to that court

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<v Speaker 1>again in a case that could have worldwide implications because

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<v Speaker 1>France's data privacy watchdog wants Google to remove links worldwide

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<v Speaker 1>rather than justin the EU. Joining me from London is

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<v Speaker 1>Ian Wilson, managing partner at Brett Wilson. Ian describe what

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<v Speaker 1>the right to be forgotten is? Um, Well, it's unhelpful

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<v Speaker 1>peraps because there's no absolute right to be forgotten. UM.

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<v Speaker 1>What it is is essentially a um request that individuals

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<v Speaker 1>can make and only related to individuals, not companies under

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<v Speaker 1>European data protection law, that search results for their name

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<v Speaker 1>and for their name only are delisted from Google search

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<v Speaker 1>results or indeed any other company search results UM for

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<v Speaker 1>specific U O L s. So it may be that

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<v Speaker 1>someone was involved in a drink driving inctance or something

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<v Speaker 1>like that, and it's coming up number one on Google

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<v Speaker 1>searches for their name. It's called it's something of disproportionate

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<v Speaker 1>effects on their career and all their personal life, and

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<v Speaker 1>so they can ask Google to delist it from the

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<v Speaker 1>results so it doesn't come up anymore, and Google will

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<v Speaker 1>have to sort of play a judge and jury and

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<v Speaker 1>just and balance that individual data protection rights against the

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<v Speaker 1>wider public interests of people looking for information on someone

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<v Speaker 1>on the public interest and then being able to find information.

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<v Speaker 1>So now France's watchdog not only find Google hundred and

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<v Speaker 1>sixteen thousand dollars or a hundred thousand euros for failing

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<v Speaker 1>to remove links from its global websites as well as

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<v Speaker 1>its websites in the EU. What is France's argument before

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<v Speaker 1>the EUSE Top Court. Well, it's it's essentially that Google

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<v Speaker 1>is processing the personal data and by that I mean

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<v Speaker 1>any any information is biographical UM of those based in

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<v Speaker 1>the EU, and by doing that, Google is UM falling

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<v Speaker 1>under the under the definition of a data controller for

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<v Speaker 1>the purpose of EU data law. That means the affect

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<v Speaker 1>Google effective a giant database. Um and you're putting someone's

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<v Speaker 1>name into and it's crunching it and spitting out results.

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<v Speaker 1>And that if it wants to do that in the

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<v Speaker 1>EU or in respective citizens individuals living in the EU,

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<v Speaker 1>it's got to compile with data protection law. Uh and

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<v Speaker 1>and and it's not simply good enough to um defense

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<v Speaker 1>it offenses around European results. It's it's it's it's global

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<v Speaker 1>search results. That's essentially the French arguments. So apparently a

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<v Speaker 1>collection of press, freedom, free speech, and civil rights groups

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<v Speaker 1>side with Google. What is Google's argument? Google's argument is

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<v Speaker 1>that and then there is some logic to Google's argument

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<v Speaker 1>that that it's not for one state, effectively one jurisdiction,

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<v Speaker 1>to dictate what happens in another legal jurisdiction. UM. It

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<v Speaker 1>goes a bit further this than this and says that

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<v Speaker 1>if if if we start, um start censoring access from

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<v Speaker 1>one country on the on the request of another country,

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<v Speaker 1>this could be abused by despotic regimes around the world

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<v Speaker 1>that don't have the same democratic values. To say, the

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<v Speaker 1>United Kingdom and the United States so it seems like,

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<v Speaker 1>you know, privacy and free speech rights are clashing here

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<v Speaker 1>and might that be might a court in a different

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<v Speaker 1>country like the US rule differently and maybe prior prioritize

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<v Speaker 1>free speech rather than privacy. So does that cause a

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<v Speaker 1>problem here? Absolutely? Yes, you know, I mean, I think

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<v Speaker 1>at the heart of this is a clash of cultures

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<v Speaker 1>that that we've um you know, working in media law,

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<v Speaker 1>we've been waiting to see expects expecting some time since

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<v Speaker 1>the interception of the Internet or certainly the Internet becoming

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<v Speaker 1>very popular. There's a lot of things that the British

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<v Speaker 1>and the Americans having in common and common law background,

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<v Speaker 1>but there's a stark digression when it comes to speech

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<v Speaker 1>and freedom expression, free speech causing free In the US

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<v Speaker 1>the First Amendment free speech is constitutionally protected. Um. In England,

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<v Speaker 1>it's it's there is there is a framework where we're

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<v Speaker 1>subjects to the European Conventional Human rights that provide that

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<v Speaker 1>has two competing rights, the rights freedom of expression, which

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<v Speaker 1>unlike in America, isn't an absolute right and various things

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<v Speaker 1>hate speech are actually criminalized in the UK, whereas there

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<v Speaker 1>sometimes constitutionally protected in US. So we have that sorry, gone. Well,

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<v Speaker 1>so where do you think this will end up? I mean,

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<v Speaker 1>you do have the General Data Protection Regulation which it's

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<v Speaker 1>forcing companies around the world to follow EU laws because

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<v Speaker 1>they want to do business there. What do you think

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<v Speaker 1>will happen here? Well, I think ultimately, I mean the

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<v Speaker 1>I mean it's going to go on to say that

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<v Speaker 1>what we have a strong uh sort of developing concepts

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<v Speaker 1>in the in Europe, the privacy law which has to

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<v Speaker 1>be balanced against um freedom expression, free speech, and that's

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<v Speaker 1>not going to go away in the EU. And I

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<v Speaker 1>mean what the EU a quite sort of we're busted.

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<v Speaker 1>And we've seen it before when they've taken on Microsoft

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<v Speaker 1>and other companies, whether it's been market dominant and ultimately,

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<v Speaker 1>you know, the way forward in the Europe and beyond,

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<v Speaker 1>it's been copied in other countries is is greater protection

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<v Speaker 1>for for personal data and as you say, different countries

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<v Speaker 1>trading with one another. Um, it's ultimately I think Google

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<v Speaker 1>aren't if they want to trade in Europe, they are

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<v Speaker 1>going to have to comply with EU rulings. Now we

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<v Speaker 1>won't know what happened, you know, the outcome of today's

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<v Speaker 1>hearing until the new New year. Probably the judgment will

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<v Speaker 1>be reserved. And there's two hearings sort of effectively two applications,

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<v Speaker 1>one today, one which is much broader, which is probably

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<v Speaker 1>not going to work. It's it doesn't take into account

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<v Speaker 1>the Balancing Act. It suggests that any sensitive Burstal days

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<v Speaker 1>to should be delisted. Um, that's not quite how it works.

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<v Speaker 1>You know. For instance, if you were a sex offender,

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<v Speaker 1>you couldn't just demand the Google removed material. There would

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<v Speaker 1>probably refuse quite rightly, not quite rightly to delist that

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<v Speaker 1>where there's a public interest in people being aware that

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<v Speaker 1>someone has a serious conviction like that. But the jurisdictional one,

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<v Speaker 1>I don't think it's one that's going to go away.

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<v Speaker 1>Today's decision is actually based on old law which is

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<v Speaker 1>no longer enforced. Oddly, we've got the gdp R. Now

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<v Speaker 1>as you say that that that codifies the right to

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<v Speaker 1>be forgotten, the fact goes service. So um, yeah, I

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<v Speaker 1>think we shall see. Thank you how much. Ian. That's

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<v Speaker 1>Ian Wilson. He's a managing partner at Brett Wilson. Over

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<v Speaker 1>the past week, both President Donald Trump and his former

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<v Speaker 1>lawyer Michael Cohen have filed court papers saying they would

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<v Speaker 1>not try to enforce the deal for Stormy Daniels to

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<v Speaker 1>remain quiet about a sexual encounter with Trump in exchange

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<v Speaker 1>for dollars. However, daniels lawyer Michael Avenati says the adult

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<v Speaker 1>film star will not give up on her legal case.

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<v Speaker 1>We're gonna continue to prosecute this case, and we're going

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<v Speaker 1>to continue to try to seek the truth and disclose

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<v Speaker 1>the truth to what happened here. Relating to the cover

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<v Speaker 1>up to the American people. Joining me is Eric Larson,

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<v Speaker 1>Bloomberg News Legal reporter. Eric, this started with the demand

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<v Speaker 1>for something like more than twenty million dollars and damages,

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<v Speaker 1>months of attack by Trump against Daniels and her attorney.

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<v Speaker 1>Tell us why this complete turnaround, Well, it depends on

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<v Speaker 1>who you ask. Um. Mr Albanati believes that the turnaround

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<v Speaker 1>is an attempt by Trump and his former lawyer Michael

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<v Speaker 1>Cohen to avoid being deposed under oath in the case,

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<v Speaker 1>which is really one of the ultimate goals that Aubanati

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<v Speaker 1>has been aiming toward here. Um, that would would be

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<v Speaker 1>problematic essentially for any president in any case, and it's

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<v Speaker 1>it's something that Albanati has said would be would reveal

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<v Speaker 1>a lot of information about this dispute. Well, Albanati, as

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<v Speaker 1>we know, has gotten a very public profile from this case.

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<v Speaker 1>He's even exploring a run for president in Sorry, but

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<v Speaker 1>can he stop the judge from throwing out the case

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<v Speaker 1>if there's no controversy? You know it's Uh, it's a

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<v Speaker 1>really good question. And there's going to be a hearing

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<v Speaker 1>on the four in Los Angeles Federal Court. UM, I'll

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<v Speaker 1>be there. We're gonna find out what the judge has

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<v Speaker 1>to say. Um. Aubanati has urged the judge to treat

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<v Speaker 1>h this statement from Trump and from Cohen about not

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<v Speaker 1>defending uh the agreement as essentially an emotion to dismiss

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<v Speaker 1>the case, and he's urging the judge to not do that.

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<v Speaker 1>He says that if if it's a settlement that Trump wants,

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<v Speaker 1>then he's going to have to go bits further in

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<v Speaker 1>terms of offering a settlement of sorts, including admitting he

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<v Speaker 1>does what Auvnandi wants is for Trump and going to

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<v Speaker 1>admit that that payment violated campaign finance laws by trying

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<v Speaker 1>to essentially influence the election. Uh. The agreement was from

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<v Speaker 1>just a month before the election, So that's one of

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<v Speaker 1>the overwriting desires in the case. Also they want their attorneys.

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<v Speaker 1>He's paid, and they want and an acknowledgement that the

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<v Speaker 1>agreement was invalid and the illegal, not just a statement

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<v Speaker 1>that they won't defend it. Well, is Trump saying that

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<v Speaker 1>he made illegal campaign finance charges? Which seems unlikely? But

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<v Speaker 1>is is that part of the suit, that is part

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<v Speaker 1>of the lawsuit. That's one of the claims, uh that

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<v Speaker 1>Stormy Daniels has made, is that the the agreement was

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<v Speaker 1>unenforceable and and void because for various reasons, because but

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<v Speaker 1>also because it was illegal because there was a campaign

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<v Speaker 1>finance violation. That's been one of their claims from Marks.

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<v Speaker 1>But the judge could throw it out without requiring that

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<v Speaker 1>from Trump or Cohen. I'd take it theoretically, Yes, Yeah,

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<v Speaker 1>that's I assume that that is what Trump and Cohen

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<v Speaker 1>are are aiming for here. And um, the judge in

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<v Speaker 1>this case, how has how how has the judge acted

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<v Speaker 1>in prior uh points that Avnati has brought up in Cohen, Well,

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<v Speaker 1>it's it's always hard to tell exactly what it uh

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<v Speaker 1>which way judge is leaning in a case. They tend

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<v Speaker 1>to uh give deference to whichever side is making sort

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<v Speaker 1>of the most urgent case. Sometimes the early early in

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<v Speaker 1>the litigation, Trump was able to get in order against

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<v Speaker 1>uh Stormy Daniels, preventing her from speaking about the case. Um.

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<v Speaker 1>And for example, you know, that was a ruling in

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<v Speaker 1>favor of Trump. But now Manati is claiming that that

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<v Speaker 1>motion when it was originally filed, as well as the

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<v Speaker 1>motion to stay the case, we're both based on essentially

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<v Speaker 1>false information and that the Trump and Cohn were misleading

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<v Speaker 1>the court by insisting that the agreement was valid in

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<v Speaker 1>order to get those rulings in their favor. So it's

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<v Speaker 1>hard to say what the judge will think now that

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<v Speaker 1>that President Trump and Cohen are both walking away from

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<v Speaker 1>this deal that they were defending. Now they want to

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<v Speaker 1>return of the hundred thirty thousand dollars. Is that based

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<v Speaker 1>on state law? Uh? You know, that's a good question.

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<v Speaker 1>Not sure exactly which law that that is based on,

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<v Speaker 1>but they they are saying that they want that money back,

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<v Speaker 1>and I'm glad you mentioned that, because Abnati says they're

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<v Speaker 1>not going to So that will be another matter for

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<v Speaker 1>the judge. True, right. So there's still the defamation case

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<v Speaker 1>in New York Federal Court against Trump for his statements

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<v Speaker 1>against Daniels, and Avanati told CNN way back when that

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<v Speaker 1>it wasn't by accident that they decided to file a

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<v Speaker 1>separate defamation suit. Does that face more legal barriers than

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<v Speaker 1>this suit? Uh, that case was Actually it was transferred

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<v Speaker 1>somewhat recently to the same federal court in Los Angeles

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<v Speaker 1>where the lawsuit over the confidentiality agreement is being heard.

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<v Speaker 1>And actually that that same case is before the same

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<v Speaker 1>judge and will be discussed at that hearing. I mentioned

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<v Speaker 1>on September, President Trump has filed emotion to strike that

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<v Speaker 1>complaint um, saying you know, it's a completely invalid and

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<v Speaker 1>wants to get it thrown out before they even do

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<v Speaker 1>any discovery uh in the case, So that that will

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<v Speaker 1>be coming up as well. Um. And obviously that that

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<v Speaker 1>case was filed by Stormy Daniels against Trump after he

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<v Speaker 1>tweeted that she was a total con job when she

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<v Speaker 1>said that she had been threatened in two thousand eleven

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<v Speaker 1>to keep quiet about that that alleged affair. Yeah, he's

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<v Speaker 1>also tweeted other things about her. Now we often hear

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<v Speaker 1>Avanatti on different television shows, radio shows talking about how

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<v Speaker 1>he wants he's going to get to depose Trump. Why

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<v Speaker 1>does he think that he'll get to depose Trump before

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<v Speaker 1>or if the Special Council cannot depose him? Well, these

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<v Speaker 1>are you know, the Special Council's investigation is on a

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<v Speaker 1>totally different track this. You know, his civil lawsuits being

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<v Speaker 1>brought by a private individual. Um, there's there's no reason

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<v Speaker 1>to assume that involved in uh, this big investigation involving

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<v Speaker 1>Russia election meddling, that he would be in some way

0:14:45.080 --> 0:14:48.280
<v Speaker 1>from from being deposed in the separate lawsuit. And I

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<v Speaker 1>know that at extent that he doesn't certainly doesn't think

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<v Speaker 1>that Mueller's investigation is on the impediments um, and that

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<v Speaker 1>in fact, she believes that his litigation is a better

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<v Speaker 1>route to try to get some of the answers out here.

0:14:59.200 --> 0:15:03.360
<v Speaker 1>He's probably looking at Paula Jones, the Paula Jones subpoena

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<v Speaker 1>of President Clinton. Thanks so much, Eric, That's Eric Larson,

0:15:06.400 --> 0:15:09.560
<v Speaker 1>Bloomberg News Legal reporter. Thanks for listening to the Bloomberg

0:15:09.680 --> 0:15:12.760
<v Speaker 1>Law Podcast. You can subscribe and listen to the show

0:15:12.800 --> 0:15:17.480
<v Speaker 1>on Apple podcast, SoundCloud and on Bloomberg dot com slash podcast.

0:15:17.880 --> 0:15:20.640
<v Speaker 1>I'm June Basso. This is Bloomberg