Few, if any, individuals do not have some bit of their past that they would prefer to forget. Whether it’s simply something embarrassing, or actually criminal, the fact is the event did occur. The European Court of Justice (ECJ) recently addressed this issue with “the right to be forgotten.” The ruling has been both condemned as censorship, and hailed as a step toward protecting personal privacy. The effect it will have on news media, and indeed on history, will not be fully determined for some time.
Advances in technology have long presented a potential threat to individual privacy. In 2013 Advocate General Jӓӓskinen wrote:
In 1890, in their seminal Harvard Law Review article ‘The Right to Privacy’, Samuel D. Warren and Louis D. Brandeis lamented that ‘[r]ecent inventions and business methods’ such as ‘[i]nstantenous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life’. In the same article they referred ‘to the next step which must be taken for the protection of the person.
In the digital age, these threats to privacy are the equivalent of cave drawings.
How the “Right to be Forgotten” Came About
The basis of the new ECJ “right to be forgotten” ruling is the 1995 Data Protection Directive. Under this Directive a person can ask for the deletion of personal data that is no longer necessary.
Mario Costeja Conzalez, a Spanish citizen, had his home repossessed in 1998 to pay off his social security debt, and the auction notices were published in the newspaper. The newspaper digitized its archives in 2008 and the article was available on the internet to search engines. Conzalez sought to have the embarrassing, but factual, article removed by the newspaper and then to have it deleted from Google searches.
His fight eventually reached the ECJ, where it was ruled that individuals can request that links to data that is “inadequate, irrelevant or no longer relevant” be removed from search results.
Google was understandably against the ruling. The company’s response was two-fold: Google pointed out that they are not a publisher of information, but merely index what others have published. The second part of their argument stated that since their servers are located in the US, they are outside of the law’s purview.
The first argument has merit as Google merely serves as a modern library card system; a search can result in contradictory information on many topics. The “right to be forgotten” is the modern day equivalent of taking a card out of the file and leaving the book on the shelf.
The second argument is rather weak. The servers are indeed located in the US, but the company derives income from companies in Spain based on searches by Spanish residents.
The ECJ was not swayed by Google’s arguments however, and as a result must provide a means for EU residents to request that links be removed.
Google created a web form where individuals may request removal of links. The form states:
In implementing this decision, we will assess each individual request and attempt to balance the privacy rights of the individual with the public’s right to know and distribute information. When evaluating your request, we will look at whether the results include outdated information about you, as well as whether there’s a public interest in the information—for example, information about financial scams, professional malpractice, criminal convictions, or public conduct of government officials.
Google will flag search results that have been edited at the request of individuals in a manner similar to cases involving copyright infringement. The company has received tens of thousands of request in just the first weeks following the ruling and has hired “an army of paralegals” to process the requests.
Issues with the Ruling
Critics of the ruling state that the “right to be forgotten” is fraught with problems. Most critics consider it to be a form of censorship, but the bigger and more immediate issue is the lack of checks and balances and a formalized system for determining if information is “inadequate, irrelevant or no longer relevant” and if it should therefore be removed.
As the fact sheet on the “right to be forgotten” states the ECJ did not make this an absolute right and member countries must take steps to update and enact Data Protection Regulation that is in line with the ruling and in step with modern technology.
David Mitchell in a Guardian article titled “The right to be forgotten will turn the internet into a work of fiction” points out some of the real-world immediate problems with the ruling and its implementation. The bigger issue, as Mitchell points out, is the real possibility that truthful, factual information is hidden due to the individual requests.
Will Google do it?
Google has little choice but to make an attempt to comply with the ruling or else face fines of 2% of their annual worldwide turnover, which in Google’s case is an astronomical amount of money.
An already existing system, which handles deletion requests for social security numbers, bank account numbers, credit card numbers and copyright violations, can be used to aid in honouring this crucial judgment.
Removal of a link will only take place on the EU specific versions of Google, and will not affect the indexes maintained by Google.com. If someone from the UK requests a removal, it will help him get rid of all EU Google domain results and not just .co.uk, but he will not be forgotten by Google.com. And the same goes for someone who accesses Google.co.uk from the US; he will still find it indexed. So “right to be forgotten” will only forget EU customers accessing EU Google from within the EU.
What about others?
People might have forgotten Bing, Yahoo and other search engines, but courts still treat them the same and everyone is equal in the eyes of the law. Soon, we will see Microsoft, Yahoo and other search engines coming up with similar “right to be forgotten” request forms.
The Other Problem with the Ruling
However, one side is against the critics. They see the “right to be forgotten” as a landmark first step in proving that “Privacy is not dead in the EU” and a protection of individual privacy.
In fact, the ruling really gives individuals a false sense of privacy. Google, and other search engines, only show data that is published. The search can include comments made in response to blogs and information contained in Facebook pages or Twitter feeds. Google searches can also show results from speeches, judicial proceedings, public databases and news sites. While the information may be embarrassing, if the individual actually made the comments, authored the post, or the subject of the article is truthful, saying that the “right to be forgotten” is a privacy measure is farfetched. In his Guardian Article, Mitchell summed it up very well; “No one has the right to be forgotten, any more than they have the right to be remembered. Our only right in this regard should be not to be lied about.”
Privacy is indeed an endangered right; making factual information more difficult to find does little, if anything, to increase the amount of individual privacy.
Individuals willingly give up vast amounts of private information daily. Every time a purchase is made with a credit or debit card personal information is gathered, bundled and sold by data brokers. Gmail and other free email services routinely scan emails to tailor adverts for the user. Our willingness to use free Wi-Fi networks opens personal information to a wide audience, and mobile apps regularly access and use our contact lists and internet usage for marketing purposes and to “enrich” our online experiences.
Those that are truly concerned with the erosion of personal privacy should perhaps examine other avenues of offering protection, as the potential damages are far worse than potential embarrassment based on the truth.
Are we really ready to put a censorship on internet? And let the history be rewritten by the ones who want it to by their side.