Powerful criticism of the "right to be forgotten"

Yesterday I blogged about the new "right to be forgotten" established by the European courts.

As that post has proved so popular - and as I appear still to be the only Liberal Democrat concerned by the issues it raises - here is a round up of others' comment about it.

On the Guardian website James Ball writes about that paper's experiences so far:

Stark evidence of this fact, the result of a European court ruling that individuals had the right to remove material about themselves from search engine results, arrived in the Guardian's inbox this morning, in the form of an automated notification that six Guardian articles have been scrubbed from search results. 

The first six articles down the memory hole – there will likely be many more as the rich and powerful look to scrub up their online images, doubtless with the help of a new wave of "reputation management" firms – are a strange bunch. 

Three of the articles, dating from 2010, relate to a now-retired Scottish Premier League referee, Dougie McDonald, who was found to have lied about his reasons for granting a penalty in a Celtic v Dundee United match, the backlash to which prompted his resignation. ... 

The other disappeared articles – the Guardian isn't given any reason for the deletions – are a 2011 piece on French office workers making post-it art, a 2002 piece about a solicitor facing a fraud trial standing for a seat on the Law Society's ruling body and an index of an entire week of pieces by Guardian media commentator Roy Greenslade.

As Ball goes on to say:

The Guardian, like the rest of the media, regularly writes about things people have done which might not be illegal but raise serious political, moral or ethical questions – tax avoidance, for example. These should not be allowed to disappear: to do so is a huge, if indirect, challenge to press freedom. The ruling has created a stopwatch on free expression – our journalism can be found only until someone asks for it to be hidden.

Xindex, a blog run by Index on Censorship, says the court ruling that has brought this right into being s deeply problematic, and needs to be challenged on many fronts:

We need policymakers to recognise this flabby ruling needs to be tightened up fast with proper checks and balances – clear guidelines on what can and should be removed (not leaving it to Google and others to define their own standards of ‘relevance’), demands for transparency from search engines on who and how they make decisions, and an appeals process. 

If search engines really believe this is a poor ruling then they should make a clear stand against it by kicking all right to be forgotten requests to data protection authorities to make decisions. The flood of requests that would be driven to these already stretched national organisations might help to focus minds on how to prevent a ruling intended to protect personal privacy from becoming a blanket invitation to censorship.

And even setting aside questions of censorship, Panopticon points out that there are all sorts of problems raised by that ruling:

Suppose, for example, that I am an investigative journalist with substantial reputational and career investment in articles about a particular individual who then persuades Google to ensure that my articles do not surface in EU Google searches for his name? Those articles also contain my name, work and opinions, i.e. they also contain my personal data. In acceding to the ‘please forget me’ request without seeking my input, could Google be said to have processed my personal data unfairly, whittling away my online personal and professional output (at least to the extent that the relevant EU Google searches are curtailed)? Could this be said to cause me damage or distress? If so, can I plausibly issue a notice under s. 10 of the DPA, seek damages under s. 13, or ask the ICO to take enforcement action under s. 40? 

The same questions could arise, for example, if my personal backstory is heavily entwined with that of another person who persuades Google to remove from its EU search results articles discussing both of us – that may be beneficial for the requester, but detrimental to me in terms of the adequacy of personal data about me which Google makes available to the interested searcher.

Back on the Guardian site, James Ball has ideas for getting round the ruling:

Publishers can and should do more to fight back. One route may be legal action. Others may be looking for search tools and engines outside the EU. Quicker than that is a direct innovation: how about any time a news outlet gets a notification, it tweets a link to the article that's just been disappeared. Would you follow @GdnVanished?

I would follow it, but there are more fundamental problems for Liberals here.

We instinctively support freedom of information, but many of us want to support privacy too - I was happy to publish a guest post in support of European privacy legislation by Paul Bradwell on this blog.

This week's events have shown that these two instincts can come into conflict and that we have hard choices to make.

But for Liberals this is really not a hard choice. As John Stuart Mill and Karl Popper have shown, free discussion and free criticism lie at the heart of our creed and we should not compromise our belief in them.