It was of course utterly predictable to anyone with an ounce of common sense - which depending on your point of view, may exclude the various members of the European Court of Justice - that endorsing the ‘right to be forgotten’ would see an immediate rush to rewrite history by assorted ne’er-do-wells of varying political and criminal dispositions.
Last week the European Court of Justice's (ECJ) 28 members ruled against Google in relation to a complaint from Spanish citizen Mario Costeja Gonzalez, who wanted the removal from search listings of an old notice detailing his social security debts, which had been placed in a newspaper to announce a property auction being held to recover debts.
The ECJ ruled that Google is actually the “controller” of the data and as such it is responsible for removing unwanted links if and when requested to do so.
The court did note a need for a balance to be struck between private rights and public interest to prevent public figures using the ruling to delete evidence of previous actions or statements, but that left plenty of wiggle-room for individuals who would like to blot out chunks of their past to get in line for some judicially-sanctioned censorship.
Among the requests to date, curated from various media sources, are said to be:
- An actor who had an affair with a teenager asking for links to articles removed.
- A man who tried to kill members of his own family, and has requested that links to a news story about the incident be removed.
- The child of a celebrity who wants links to stories about a criminal conviction removed.
- A British politician currently seeking re-election who has requested links to a news article about his behavior when he was previously in office be removed.
- A doctor who wants negative reviews from patients removed from search results.
- A man convicted of running a tax scam who wants all links referencing the event removed.
- A pedophile convicted of possession of child sexual abuse imagery requested links to pages about his conviction be removed.
Now, there's a fair few in there that would clearly have good reason to want to make it as difficult as possible to dig up their pasts, but I'd also argue that there's a fair few there where that information's availability is entirely in the public interest.
In Germany, reports began circulating that Google would have to take action within the next two weeks to comply with the court, a clearly ludicrously unlikely deadline but one pitched by Ulrich Kühn, deputy commissioner for Hamburg’s data-protection authority and effectively the lead privacy regulator for Google in Germany because the company has its largest German office in the city.
While the ruling - which covers all 28 European Union states - would clearly require a major investment in compliance and governance officers and new processes, Kühn seems to believe that the existing take-down processes Google uses for copyrighted material or legal privacy violations will be able to cope with the new requirements.
With staggering naivety he blithely states:
“Similar technical processes already exist at Google Germany, so we are confident they’ll manage to adapt these within that time frame.”
The fact that a basic copyright infringement is a far simpler matter to deal with than assessing potentially self-serving claims to erase links to embarrassing information that might still be in the public interest, seems to escape him - or is perhaps a consideration he’s just not interested in?
A bit of Google-bashing does go down rather well in Germany, where the ruling has fuelled anti-Google sentiment in Germany. In fact, the country’s Economy Minister Sigmar Gabriel has threatened to break-up the company after 400 competitors submitted an anti-trust complaint about the US supplier to the European Commission.
Officially, Google’s position is:
“The ruling has significant implications for how we handle takedown requests. This is logistically complicated-not least because of the many languages involved and the need for careful review. As soon as we have thought through exactly how this will work, which may take several weeks, we will let our users know.”
At Google’s annual shareholder meeting following the ruling, chief legal officer David Drummond said that the EU court:
"didn't consider adequately the impact on free expression, which is absolutely a human right".
Meanwhile Google chairman Eric Schmidt was equally blunt:
“A simple way of understanding what happened here is that you have a collision between a right to be forgotten and a right to know. From Google's perspective that's a balance. Google believes having looked at the decision, which is binding, that the balance that was struck was wrong.”
Viviane Reding, the European Justice Commissioner, who’s currently pushing for draconian amendments to European data protection legislation and demanding that the US falls in line with these, immediately welcomed the ruling by the court last week as “a clear victory”.
Other political figures, perhaps recognizing the ethical nightmare that the court has unleashed, have been more careful in their pronouncements. UK Prime Minister David Cameron, a friend of Google’s Schmidt, choose to dither when asked his view:
“I haven't actually had a lot of time to look at this issue, so maybe I will have to get back to you on that. The basic principal that your information belongs to you is a good one, but I haven't had a careful look at this, so I have to give you a considered answer another time. There you go - a politician who doesn't know all the answers.”
I’m inclined to think that if Cameron doesn’t know all the answers, there’s a future waiting for him in the European Court of Justice! But then I suspect his chum Schmidt may be able to educate him on a more appropriate opinion than just trying to keep his head down.
This is only the start. Wikipedia founder Jimmy Wales, dubbing this as “one of the most wide-sweeping internet censorship rulings that I've ever seen”, is to be heeded when he warns:
“When will a European Court demand that Wikipedia censor an article with truthful information because an individual doesn't like it?”
Commissioner Reding, hellbent on pushing through damaging data protection demands before she's out of office in September, may regard all this mess as a victory, but the only way to measure that victory is in degrees of political opportunism, an unattractive benchmark at the best of times.
As a journalist, I also never thought I’d see a newspaper - whose ability to conduct investigative journalism into suspect characters would be hideously hampered by this ruling - would ever be happy to run this headline, even in an opinion article:
That one, courtesy of the FT.com! Shame on them, the new Ministry of Truth!
Sounder counsel comes from Emma Carr, acting director of privacy advocates Big Brother Watch, who argues:
“The principle that you have a right to be forgotten is a laudable one, but it was never intended to be a way for people to rewrite history. Search engines do not host information and trying to get them to censor legal content from their results is the wrong approach. Information should be tackled at source, which in this case is a Spanish newspaper, otherwise we start getting into very dangerous territory.
“The regulators should be doing more to ensure that people have an informed choice over what data is collected about them by companies like Google, but if we start to make intermediaries responsible for the actions of the content of other people, you’re establishing a model that leads to greater surveillance and a risk of censorship.”