Britain pledges to fight Europe's Right to be Forgotten bad law

Profile picture for user slauchlan By Stuart Lauchlan July 9, 2014
Summary:
European Union plans to enforce the controversial Right to be Forgotten will not work, are technically unfeasible and reduce the collection of democracies to the status of a communist dictatorship. That'd be a no then from the UK.

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House of Lords

The contradictory nature of politics is such that a government can seek to take a stand against one policy while preparing to implement one that’s potentially equally damaging at the same time.

So it is this week that the UK government prepares to sneak through beefed-up emergency surveillance legislation to enable phone tapping and online communications interception on a grand scale while simultaneously hitting out at a pan-European threat to freedom of information.

The reason it will be emergency legislation is because earlier in the year the European Court of Justice (ECJ), the highest legal authority in the European Union, ruled that telcos and internet companies didn’t have to keep records of calls, texts and emails.

So today the Prime Minister will chair a session of the Cabinet at Downing Street to drum up emergency laws, that will only run through to 2016 (they say) to restore the right to the police and security services to get access to online data, all in the name of liberty and security of course. The new laws, which have cross-party support, will be pushed through Parliament next week.

No right to be forgotten

But while this incursion into privacy rights is taking place, at the same time the UK government is taking a stand against another ECJ ruling, that of the so-called Right to be Forgotten which came into force in May.

This enables EU citizens to demand that the likes of Google remove search engine links to things that the complainant would rather not have on public view - murder charges, corruption convictions, paedophilic tendencies, that sort of thing.

The creation of what is effectively a blunt instrument to rewrite history was of course welcomed in Brussels, where an over-excited Commissioner for Justice Vivian Reding declared it a massive victory, while most EU states are currently working out how to enforce the ruling.

Not for the first or the last time, the UK finds itself out of step with the rest of Europe - and this time that’s to be applauded without reservation.

When the ruling was first announced, Prime Minister David Cameron fudged taking a stand on the matter, despite his close links to Google and his working relationship with Google CEO Eric Schmidt who is one of his advisors.

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Simon Hughes

But yesterday UK Justice Minister Simon Hughes drew a line in the political sand when he told a committee in the British upper legislative assembly the House of Lords that the Right to be Forgotten is technically unenforceable, would lead to thousands of misconceived complaints and is tantamount to the kind of censorship seen in communist dictatorships.

Hughes did not mince his words, accusing the EU of acting like communist China rather than a federation of democratic states:

We have criticised the government of China... for closing down people's right to information. There are other countries with strict information access.

It is not a good position for the EU to be in to look as if it is countenancing restrictions in the access of the citizen to access to information because it could be a very bad precedent.

The ruling only covers search engines on European sites, which means that, for example, something erased from Google.co.uk will still be visible in Europe if the user switches to Google.com. This means in practice that there is no technical way for complainants to erase information no matter what they may believe.

Hughes said:

If politicians think they can delete findings about their expenses, that's not going to happen. If people think they can delete their criminal history, it won't occur.

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.


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Hughes also pointed out that even if people request to have links removed, there is no compulsion for this to be done, only for the search engine provider to consider the request.

Under the present law individuals clearly do have the right to request deletion of their personal data where it is irrelevant, outdated or inappropriate.

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.

Google must step up

Hughes clearly hopes that internet services providers will step up to the mark and resist the ECJ and EC demands.

There had been fears that rather than attempt to evaluate each request individually, Google would simply wave through each request to cut down the cost of trying to comply with the ruling.

More than 70,000 requests have been made in total to Google alone, demanding that 250,000 links to information be removed. The search engine is receiving 1,000 requests per day, each of which has to be evaluated behind closed doors by the company's lawyers.

But in fact Google has been reinstating some links that it previously removed, most notably to an article published five years ago about the brother of the UK finance minister George Osborne converting to Islam. Hughes noted:

Google are being very cooperative. My interpretation is that this is difficult and uncomfortable for them. They are conscious of their global influence. I think they would be very keen for the law to be changed as soon as possible and will collaborate with us to do so.

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Vivian Reding

After all that, it will come as no surprise to anyone that the UK will seek to get the Right to be Forgotten dropped from toughened-up pan-European data protection laws that Reding and her team are currently pushing through. Hughes confirmed:

The government is currently negotiating with our 27 partners to get a new law, which is the new directive and we, the UK, would not want what is currently in the draft, which is the Right to be Forgotten, to remain. We want it to be removed, we think it is the wrong position.

I don't think we want the law to develop in the way that is implied by the ECJ judgment, which is that you close down access to information in the EU which is open in the rest of the world. We do not agree with the present text.

My take

Hughes' blunt speaking yesterday came as a surprise to me, but probably not to Commissioner Reding who has tetchily said that she’s given up any expectation of assistance from the British.

The UK government will inevitably be berated by the Eurocrats in Brussels for making a fuss, but the plain and simple reality is that the ECJ ruling makes for bad law and bad laws need to be overturned.

This is definitely a fight worth fighting and a stand worth taking.

And if it spoils Vivian Reding’s day even a little bit in the process, then so much the better from where I’m sitting.