The "right to be forgotten" spreads its tentacles

It's a while since I wrote about the "right to be forgotten" - you can find my earlier posts on the subject by following that link.

Today's Guardian carries a report that reminds us how it came about and reveals that the courts are increasing its reach:

Ever since the European court ordered Google to delist a 16-year-old article about a bankruptcy, web watchers have wondered how the ‘right to be forgotten’ would evolve. 

Mario Costeja González’s ‘Data and Goliath’ victory in 2014 in Spain has meant that human concepts of fairness are now applied to Google Search, which is subject to European data protection laws. 

But there are now worrying new signs from Europe that the right is being applied directly against news websites and not just search engines.

The author, Athalie Matthews, concludes:

Consequently, in Italy at least, ‘the right to be forgotten’ now has a new meaning: the right to remove inconvenient journalism from archives after two years. 

This surely cannot be right. If it was, everyone would demand deletions from news websites and online journalism would be decimated.

House of Lords committee says right to be forgotten is unworkable

From this morning's Guardian:

A "right to be forgotten" – enforcing the removal of online material – is wrong in principle and unworkable in practice, a parliamentary committee has said. 

The House of Lords home affairs, health and education EU sub-committee has condemned regulations being drawn up by the European commission and a recent landmark judgment by the European court of justice (ECJ) in Luxembourg. 

The study supports the coalition government's opposition to the EU proposals on the grounds that search engines should not be made responsible for the content of the internet.

Simon Hughes says "right to be forgotten" is unworkable

The Guardian reports Simon Hughes' appearance before the Lords home affairs committee yesterday:

He said: "There is no right given by the judgment for people to have their personal data deleted from the search engine results. There is no unfettered right. There is no right to be forgotten. Not in the law of the UK, not in directives, not in the judgments of the court." 

Hughes said a "mischievous" business of online reputation management had emerged since the judgment, offering to assist people trying to request removal of information online. 

On the practicalities, Hughes commented: "It looks to me as if it may be an unmanageable task. It will be a phenomenal task. It's not technically possible to remove all traces of data loaded on to the internet from other sources. You can't exercise the right to be forgotten. The information system could not be made to do it.

Simon is right, of course, and I am pleased to hear him saying this. It's just a shame that Liberal Democrat MEPs took a different line before the recent elections.

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.

The "right to be forgotten" means the BBC is effectively being censored. Where's the outrage?

More comment on the "right to be forgotten" can be found in a later post.

When the "right to be forgotten", which obliges Google to delete "inadequate, irrelevant or no longer relevant" data from its results when a member of the public requests it,was brought into being by the European courts I wrote:

It is public figures who have the money to employ the sort of lawyers Google will take notice of. So it is public figures who are most likely to benefit from the "right to be forgotten".

If you read Robert Peston on the BBC News Business pages today, you will see how right I was.

It begins:

This morning the BBC received the following notification from Google: 

Notice of removal from Google Search: we regret to inform you that we are no longer able to show the following pages from your website in response to certain searches on European versions of Google: 

http://www.bbc.co.uk/blogs/legacy/thereporters/ robertpeston/2007/10/merrills_mess.html 

What it means is that a blog I wrote in 2007 will no longer be findable when searching on Google in Europe. 

Which means that to all intents and purposes the article has been removed from the public record, given that Google is the route to information and stories for most people.

Why has this old blog post of Peston's been weeded from Google's search results? Peston explains

Now in my blog, only one individual is named. He is Stan O'Neal, the former boss of the investment bank Merrill Lynch. 

My column describes how O'Neal was forced out of Merrill after the investment bank suffered colossal losses on reckless investments it had made. 

Is the data in it "inadequate, irrelevant or no longer relevant"? 

Hmmm.

If the British courts had given Google the obligation to effectively censor the BBC, my fellow Liberal Democrats would have been up in arms. But so far I have seen no comment on this case from any of them.

Perhaps this shows that when you add the magic word "Europe" to any debate, we tend to suspend our critical faculties.

In fact it is worse than that.

The "right to be forgotten" was enthusiastically welcomed by Liberal Democrat MEPs (in the days when it was possible to use that plural). Here is Sarah Ludford writing in May:

It is gratifying that the Court has backed the ‘right to erasure’ that MEPs recently demanded be made explicit in the EU's updated data protection law. Coming hot on the heels of the Court’s strikedown of the Data Retention Directive, it is clear beyond doubt that the EU’s highest judicial authority stands squarely behind the European Parliament and Liberal Democrats in strengthening EU privacy rights.

It is now up to the 28 EU governments to respond to this array of forces and stop running away from the challenge to curb overreach by the state and the private sector. Enabling EU citizens to have trust that their online data will stay in their control will boost, not harm, the digital economy.

But, just as I forecast, it is not private citizens who are benefiting from this new right but the rich and powerful.

As Peston explains:

Most people would argue that it is highly relevant for the track record, good or bad, of a business leader to remain on the public record - especially someone widely seen as having played an important role in the worst financial crisis in living memory (Merrill went to the brink of collapse the following year, and was rescued by Bank of America).

Is a right to be forgotten practicable?

Ed Lucas writes in the Economist:

The court’s desire to protect victims of misunderstanding and malice is understandable. But a right to be forgotten would be hard to implement. 

Even if Google is made to censor its search results in Europe, in America the First Amendment’s free-speech provision usually trumps privacy concerns. 

With modest technical know-how, European internet users will be able to make American-style searches. Europe will hardly want to build a Chinese-style firewall to prevent that.

The right to be forgotten and Orwell's memory hole

A couple of days ago I blogged that the "right to be forgotten" is a worrying development. Now a story on BBC News shows what it may lead to:

Google has received fresh takedown requests after a European court ruled that an individual could force it to remove "irrelevant and outdated" search results, the BBC has learned. 

An ex-politician seeking re-election has asked to have links to an article about his behaviour in office removed. 

A man convicted of possessing child abuse images has requested links to pages about his conviction to be wiped. 

And a doctor wants negative reviews from patients removed from the results.

I expect "the BBC has learned" all this because Google has been careful to tell it, but this report does show some of the dangers of this newly minted right.

Over to Canada and Don Pittis on CBC News:

The European Court has shown the horrible danger of an ephemeral electronic storage system. 

Suddenly a government or court can rule that information no longer exists in an easily accessible form. A paragraph from an electronic book, an article in an electronic newspaper, cannot be searched. And whoosh, history has changed. 

It sounds like an excerpt from George Orwell's dystopian novel 1984 where The Ministry of Truth could decide which facts were acceptable. 

"For some reason they were nicknamed memory holes," Orwell wrote. "When one knew that any document was due for destruction … it was an automatic action to lift the flap of the nearest memory hole and drop it in, whereupon it would be whirled away on a current of warm air to the enormous furnaces which were hidden somewhere in the recesses of the building."

The "right to be forgotten" is a worrying development

The Guardian reports:

The top European court has backed the "right to be forgotten" and said Google must delete "inadequate, irrelevant or no longer relevant" data from its results when a member of the public requests it.

Is this workable? Will judges' idea of what is relevant be the same as that of the wider public? And, most importantly, will it be members of the public who make most use of this power?

The press release from the Court of Justice of the European Union that accompanies the judgment does allow for the idea that those in power should find it harder to use this new right:

However, inasmuch as the removal of links from the list of results could, depending on the information at issue, have effects upon the legitimate interest of internet users potentially interested in having access to that information, the Court holds that a fair balance should be sought in particular between that interest and the data subject’s fundamental rights, in particular the right to privacy and the right to protection of personal data. 

The Court observes in this regard that, whilst it is true that the data subject’s rights also override, as a general rule, that interest of internet users, this balance may however depend, in specific cases, on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life.

Nevertheless, it is public figures who have the money to employ the sort of lawyers Google will take notice of. So it is public figures who are most likely to benefit from the "right to be forgotten".

Indeed, public figures already have some power to censor Google searches. Type in the name of a Labour peer who has been in the news recently and on page two of the results you will see this...

I suppose I should declare an interest here. My Comment is Free piece a couple of days ago relied heavily on my memories of half-forgotten scandals and Google. Laughing at the sins and follies of the wealthy is one of the things the internet was made for, as well as being one of the traditional consolations of the poor.

Do we really want to see an end to that? Must we now respect public figures no matter how badly they behave?

I was alarmed to see Sarah Ludford welcoming the court's decision in the Guardian. But, as is entirely appropriate, when you look at the report now her name as entirely disappeared.

We had better get used to it.