Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcasts. The right to
Speaker 1: be forgotten is a distinctly European right, and Google wants
Speaker 1: to keep it that way. Four years ago, the European
Speaker 1: Union's top court rule that Google has to remove links
Speaker 1: to information about a person on request if it's outdated
Speaker 1: or irrelevant. Now Google is heading back to that court
Speaker 1: again in a case that could have worldwide implications because
Speaker 1: France's data privacy watchdog wants Google to remove links worldwide
Speaker 1: rather than justin the EU. Joining me from London is
Speaker 1: Ian Wilson, managing partner at Brett Wilson. Ian describe what
Speaker 1: the right to be forgotten is? Um, Well, it's unhelpful
Speaker 1: peraps because there's no absolute right to be forgotten. UM.
Speaker 1: What it is is essentially a um request that individuals
Speaker 1: can make and only related to individuals, not companies under
Speaker 1: European data protection law, that search results for their name
Speaker 1: and for their name only are delisted from Google search
Speaker 1: results or indeed any other company search results UM for
Speaker 1: specific U O L s. So it may be that
Speaker 1: someone was involved in a drink driving inctance or something
Speaker 1: like that, and it's coming up number one on Google
Speaker 1: searches for their name. It's called it's something of disproportionate
Speaker 1: effects on their career and all their personal life, and
Speaker 1: so they can ask Google to delist it from the
Speaker 1: results so it doesn't come up anymore, and Google will
Speaker 1: have to sort of play a judge and jury and
Speaker 1: just and balance that individual data protection rights against the
Speaker 1: wider public interests of people looking for information on someone
Speaker 1: on the public interest and then being able to find information.
Speaker 1: So now France's watchdog not only find Google hundred and
Speaker 1: sixteen thousand dollars or a hundred thousand euros for failing
Speaker 1: to remove links from its global websites as well as
Speaker 1: its websites in the EU. What is France's argument before
Speaker 1: the EUSE Top Court. Well, it's it's essentially that Google
Speaker 1: is processing the personal data and by that I mean
Speaker 1: any any information is biographical UM of those based in
Speaker 1: the EU, and by doing that, Google is UM falling
Speaker 1: under the under the definition of a data controller for
Speaker 1: the purpose of EU data law. That means the affect
Speaker 1: Google effective a giant database. Um and you're putting someone's
Speaker 1: name into and it's crunching it and spitting out results.
Speaker 1: And that if it wants to do that in the
Speaker 1: EU or in respective citizens individuals living in the EU,
Speaker 1: it's got to compile with data protection law. Uh and
Speaker 1: and and it's not simply good enough to um defense
Speaker 1: it offenses around European results. It's it's it's it's global
Speaker 1: search results. That's essentially the French arguments. So apparently a
Speaker 1: collection of press, freedom, free speech, and civil rights groups
Speaker 1: side with Google. What is Google's argument? Google's argument is
Speaker 1: that and then there is some logic to Google's argument
Speaker 1: that that it's not for one state, effectively one jurisdiction,
Speaker 1: to dictate what happens in another legal jurisdiction. UM. It
Speaker 1: goes a bit further this than this and says that
Speaker 1: if if if we start, um start censoring access from
Speaker 1: one country on the on the request of another country,
Speaker 1: this could be abused by despotic regimes around the world
Speaker 1: that don't have the same democratic values. To say, the
Speaker 1: United Kingdom and the United States so it seems like,
Speaker 1: you know, privacy and free speech rights are clashing here
Speaker 1: and might that be might a court in a different
Speaker 1: country like the US rule differently and maybe prior prioritize
Speaker 1: free speech rather than privacy. So does that cause a
Speaker 1: problem here? Absolutely? Yes, you know, I mean, I think
Speaker 1: at the heart of this is a clash of cultures
Speaker 1: that that we've um you know, working in media law,
Speaker 1: we've been waiting to see expects expecting some time since
Speaker 1: the interception of the Internet or certainly the Internet becoming
Speaker 1: very popular. There's a lot of things that the British
Speaker 1: and the Americans having in common and common law background,
Speaker 1: but there's a stark digression when it comes to speech
Speaker 1: and freedom expression, free speech causing free In the US
Speaker 1: the First Amendment free speech is constitutionally protected. Um. In England,
Speaker 1: it's it's there is there is a framework where we're
Speaker 1: subjects to the European Conventional Human rights that provide that
Speaker 1: has two competing rights, the rights freedom of expression, which
Speaker 1: unlike in America, isn't an absolute right and various things
Speaker 1: hate speech are actually criminalized in the UK, whereas there
Speaker 1: sometimes constitutionally protected in US. So we have that sorry, gone. Well,
Speaker 1: so where do you think this will end up? I mean,
Speaker 1: you do have the General Data Protection Regulation which it's
Speaker 1: forcing companies around the world to follow EU laws because
Speaker 1: they want to do business there. What do you think
Speaker 1: will happen here? Well, I think ultimately, I mean the
Speaker 1: I mean it's going to go on to say that
Speaker 1: what we have a strong uh sort of developing concepts
Speaker 1: in the in Europe, the privacy law which has to
Speaker 1: be balanced against um freedom expression, free speech, and that's
Speaker 1: not going to go away in the EU. And I
Speaker 1: mean what the EU a quite sort of we're busted.
Speaker 1: And we've seen it before when they've taken on Microsoft
Speaker 1: and other companies, whether it's been market dominant and ultimately,
Speaker 1: you know, the way forward in the Europe and beyond,
Speaker 1: it's been copied in other countries is is greater protection
Speaker 1: for for personal data and as you say, different countries
Speaker 1: trading with one another. Um, it's ultimately I think Google
Speaker 1: aren't if they want to trade in Europe, they are
Speaker 1: going to have to comply with EU rulings. Now we
Speaker 1: won't know what happened, you know, the outcome of today's
Speaker 1: hearing until the new New year. Probably the judgment will
Speaker 1: be reserved. And there's two hearings sort of effectively two applications,
Speaker 1: one today, one which is much broader, which is probably
Speaker 1: not going to work. It's it doesn't take into account
Speaker 1: the Balancing Act. It suggests that any sensitive Burstal days
Speaker 1: to should be delisted. Um, that's not quite how it works.
Speaker 1: You know. For instance, if you were a sex offender,
Speaker 1: you couldn't just demand the Google removed material. There would
Speaker 1: probably refuse quite rightly, not quite rightly to delist that
Speaker 1: where there's a public interest in people being aware that
Speaker 1: someone has a serious conviction like that. But the jurisdictional one,
Speaker 1: I don't think it's one that's going to go away.
Speaker 1: Today's decision is actually based on old law which is
Speaker 1: no longer enforced. Oddly, we've got the gdp R. Now
Speaker 1: as you say that that that codifies the right to
Speaker 1: be forgotten, the fact goes service. So um, yeah, I
Speaker 1: think we shall see. Thank you how much. Ian. That's
Speaker 1: Ian Wilson. He's a managing partner at Brett Wilson. Over
Speaker 1: the past week, both President Donald Trump and his former
Speaker 1: lawyer Michael Cohen have filed court papers saying they would
Speaker 1: not try to enforce the deal for Stormy Daniels to
Speaker 1: remain quiet about a sexual encounter with Trump in exchange
Speaker 1: for dollars. However, daniels lawyer Michael Avenati says the adult
Speaker 1: film star will not give up on her legal case.
Speaker 1: We're gonna continue to prosecute this case, and we're going
Speaker 1: to continue to try to seek the truth and disclose
Speaker 1: the truth to what happened here. Relating to the cover
Speaker 1: up to the American people. Joining me is Eric Larson,
Speaker 1: Bloomberg News Legal reporter. Eric, this started with the demand
Speaker 1: for something like more than twenty million dollars and damages,
Speaker 1: months of attack by Trump against Daniels and her attorney.
Speaker 1: Tell us why this complete turnaround, Well, it depends on
Speaker 1: who you ask. Um. Mr Albanati believes that the turnaround
Speaker 1: is an attempt by Trump and his former lawyer Michael
Speaker 1: Cohen to avoid being deposed under oath in the case,
Speaker 1: which is really one of the ultimate goals that Aubanati
Speaker 1: has been aiming toward here. Um, that would would be
Speaker 1: problematic essentially for any president in any case, and it's
Speaker 1: it's something that Albanati has said would be would reveal
Speaker 1: a lot of information about this dispute. Well, Albanati, as
Speaker 1: we know, has gotten a very public profile from this case.
Speaker 1: He's even exploring a run for president in Sorry, but
Speaker 1: can he stop the judge from throwing out the case
Speaker 1: if there's no controversy? You know it's Uh, it's a
Speaker 1: really good question. And there's going to be a hearing
Speaker 1: on the four in Los Angeles Federal Court. UM, I'll
Speaker 1: be there. We're gonna find out what the judge has
Speaker 1: to say. Um. Aubanati has urged the judge to treat
Speaker 1: h this statement from Trump and from Cohen about not
Speaker 1: defending uh the agreement as essentially an emotion to dismiss
Speaker 1: the case, and he's urging the judge to not do that.
Speaker 1: He says that if if it's a settlement that Trump wants,
Speaker 1: then he's going to have to go bits further in
Speaker 1: terms of offering a settlement of sorts, including admitting he
Speaker 1: does what Auvnandi wants is for Trump and going to
Speaker 1: admit that that payment violated campaign finance laws by trying
Speaker 1: to essentially influence the election. Uh. The agreement was from
Speaker 1: just a month before the election, So that's one of
Speaker 1: the overwriting desires in the case. Also they want their attorneys.
Speaker 1: He's paid, and they want and an acknowledgement that the
Speaker 1: agreement was invalid and the illegal, not just a statement
Speaker 1: that they won't defend it. Well, is Trump saying that
Speaker 1: he made illegal campaign finance charges? Which seems unlikely? But
Speaker 1: is is that part of the suit, that is part
Speaker 1: of the lawsuit. That's one of the claims, uh that
Speaker 1: Stormy Daniels has made, is that the the agreement was
Speaker 1: unenforceable and and void because for various reasons, because but
Speaker 1: also because it was illegal because there was a campaign
Speaker 1: finance violation. That's been one of their claims from Marks.
Speaker 1: But the judge could throw it out without requiring that
Speaker 1: from Trump or Cohen. I'd take it theoretically, Yes, Yeah,
Speaker 1: that's I assume that that is what Trump and Cohen
Speaker 1: are are aiming for here. And um, the judge in
Speaker 1: this case, how has how how has the judge acted
Speaker 1: in prior uh points that Avnati has brought up in Cohen, Well,
Speaker 1: it's it's always hard to tell exactly what it uh
Speaker 1: which way judge is leaning in a case. They tend
Speaker 1: to uh give deference to whichever side is making sort
Speaker 1: of the most urgent case. Sometimes the early early in
Speaker 1: the litigation, Trump was able to get in order against
Speaker 1: uh Stormy Daniels, preventing her from speaking about the case. Um.
Speaker 1: And for example, you know, that was a ruling in
Speaker 1: favor of Trump. But now Manati is claiming that that
Speaker 1: motion when it was originally filed, as well as the
Speaker 1: motion to stay the case, we're both based on essentially
Speaker 1: false information and that the Trump and Cohn were misleading
Speaker 1: the court by insisting that the agreement was valid in
Speaker 1: order to get those rulings in their favor. So it's
Speaker 1: hard to say what the judge will think now that
Speaker 1: that President Trump and Cohen are both walking away from
Speaker 1: this deal that they were defending. Now they want to
Speaker 1: return of the hundred thirty thousand dollars. Is that based
Speaker 1: on state law? Uh? You know, that's a good question.
Speaker 1: Not sure exactly which law that that is based on,
Speaker 1: but they they are saying that they want that money back,
Speaker 1: and I'm glad you mentioned that, because Abnati says they're
Speaker 1: not going to So that will be another matter for
Speaker 1: the judge. True, right. So there's still the defamation case
Speaker 1: in New York Federal Court against Trump for his statements
Speaker 1: against Daniels, and Avanati told CNN way back when that
Speaker 1: it wasn't by accident that they decided to file a
Speaker 1: separate defamation suit. Does that face more legal barriers than
Speaker 1: this suit? Uh, that case was Actually it was transferred
Speaker 1: somewhat recently to the same federal court in Los Angeles
Speaker 1: where the lawsuit over the confidentiality agreement is being heard.
Speaker 1: And actually that that same case is before the same
Speaker 1: judge and will be discussed at that hearing. I mentioned
Speaker 1: on September, President Trump has filed emotion to strike that
Speaker 1: complaint um, saying you know, it's a completely invalid and
Speaker 1: wants to get it thrown out before they even do
Speaker 1: any discovery uh in the case, So that that will
Speaker 1: be coming up as well. Um. And obviously that that
Speaker 1: case was filed by Stormy Daniels against Trump after he
Speaker 1: tweeted that she was a total con job when she
Speaker 1: said that she had been threatened in two thousand eleven
Speaker 1: to keep quiet about that that alleged affair. Yeah, he's
Speaker 1: also tweeted other things about her. Now we often hear
Speaker 1: Avanatti on different television shows, radio shows talking about how
Speaker 1: he wants he's going to get to depose Trump. Why
Speaker 1: does he think that he'll get to depose Trump before
Speaker 1: or if the Special Council cannot depose him? Well, these
Speaker 1: are you know, the Special Council's investigation is on a
Speaker 1: totally different track this. You know, his civil lawsuits being
Speaker 1: brought by a private individual. Um, there's there's no reason
Speaker 1: to assume that involved in uh, this big investigation involving
Speaker 1: Russia election meddling, that he would be in some way
Speaker 1: from from being deposed in the separate lawsuit. And I
Speaker 1: know that at extent that he doesn't certainly doesn't think
Speaker 1: that Mueller's investigation is on the impediments um, and that
Speaker 1: in fact, she believes that his litigation is a better
Speaker 1: route to try to get some of the answers out here.
Speaker 1: He's probably looking at Paula Jones, the Paula Jones subpoena
Speaker 1: of President Clinton. Thanks so much, Eric, That's Eric Larson,
Speaker 1: Bloomberg News Legal reporter. Thanks for listening to the Bloomberg
Speaker 1: Law Podcast. You can subscribe and listen to the show
Speaker 1: on Apple podcast, SoundCloud and on Bloomberg dot com slash podcast.
Speaker 1: I'm June Basso. This is Bloomberg