UK tells EU to forget the unworkable, unreasonable, wrong right to be forgotten

Profile picture for user slauchlan By Stuart Lauchlan July 30, 2014
Summary:
The upper house of the UK parliament has condemned the European Court of Justice's controversial right to be forgotten, setting the UK on collision course with the European Commission.

Unworkable, unreasonable, and wrong!

It’s not every day that I say thank heavens for the House of Lords, but the British government’s upper legislative house delivered the goods yesterday with a clinically clear rebuttal of the right to be forgotten ruling being backed by data privacy zealots in the European Commission.

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Baroness Prashar - not happy

The so-called right was conjured into the ether by a bizarre ruling from the European Court of Justice (ECJ), the highest court in the European Union, and enables European citizens to demand that search engine providers, most notably Google to date, remove links to content that they’d rather erase from history.

Fraud, murders, pedophile convictions, war crimes, that sort of thing.

While there has been an enormous backlash against the ruling, effectively a blunt instrument to rewrite history, the likes of Viviane Reding, European Commissioner for Justice, have leapt on it enthusiastically, declaring it a victory for Europe and a step further towards her goal of ever more draconian data protection and privacy rules.

The UK government has already pledged to fight to overturn the ruling in Europe, but yesterday’s report from the House of Lords Home Affairs, Health and Education EU Sub-Committee was the most damning rebuttal to date and could leave no-one, no matter how zealous, in any doubt as to the UK’s legislature’s opposition to the idea.

Outdated thinking

What is particularly telling is that the committee not only condemned the ECJ ruling, but also the fact that the 1995 EC data protection directive on which it is based is out-dated. In other words, a bad law based on an out-of-date set of rules.

Committee chairman Baroness Prashar affirmed:

It is crystal clear that the neither the 1995 Directive, nor the [ECJ]’s interpretation of it reflects the incredible advancement in technology that we see today, over 20 years since the Directive was drafted. Anyone anywhere in the world now has information at the touch of a button, and that includes detailed personal information about people in all countries of the globe.

She added that the ECJ ruling:

does not take into account the effect the ruling will have on smaller search engines which, unlike Google, are unlikely to have the resources to process the thousands of removal requests they are likely to receive.

Secondly, we also believe that it is wrong in principle to leave search engines themselves the task of deciding whether to delete information or not, based on vague, ambiguous and unhelpful criteria, and we heard from witnesses how uncomfortable they are with the idea of a commercial company sitting in judgement on issues like that.


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Of course, by arguing that the existing EU data protection legislation is outmoded, it could be seen by some - and doubtless this case will be advanced in Brussels - that this supports the need to overhaul it.

That’s not in dispute. When the current legislation was introduced, Google wasn’t even around!

There’s a massive need for an update - just not one that contains a right to be forgotten principle as the first draft of Reding’s proposed solution does. That met with a fair bit of resistance from a number of EU member states, which is why Reding and her supporters have seized so triumphantly on the ECJ ruling.

For her part, Reding’s made no secret of her ambitions here, as she made clear in a speech to the European Parliament in March where she grandly declared that new data laws of the kind she advocates would for the European Union be:

a test of its willingness to fight for Europe's values.

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Viviane Reding - won't be happy

There is a dangerous sense of weariness creeping into the data protection debate in Europe. The committee notes that if the debate rumbles on into 2015, it will be three years since the draft proposals were first aired:

We too would welcome a conclusion of the negotiations, but not if the text is a compromise retaining all the worst elements.

On 3 July the Italian government - currently in the chair as President of the European Union - circulated a note entitled 'Right to be forgotten and the Google judgment' which works on the assumption that the right to be forgotten will remain part of the draft regulation.

Prashar and her committee take an unequivocal stand on this:

The Presidency seem to assume that the law as set out by the Court in its interpretation of the Directive must continue to be the law as stated in the draft Regulation. We believe this is a profound error.

The task of the Court is to interpret the current law. It is for the Council and the European Parliament, as legislators, to make the law for the future. If, as we believe, the current law as interpreted by the Court is a bad law, it is for the legislators to replace it with a better law.

Effectively Prashar and her cross-party committee give the UK government their backing to take a stand on this and keep fighting to remove any such clause:

The Government, and governments of other Member States with similar views, must insist on a text which does away with any right allowing a data subject to remove links to information which is accurate and lawfully available.

It is incredibility difficult for legislation to keep up or ‘future proof’ the unforeseen leaps that technology is bound to make. We do, however, need to ensure that the next Regulation does not attempt to give individuals rights which are unenforceable.

My take

Good! This invidious ruling needs to be fought at every turn.

While there’s no doubt that data protection legislation across Europe - and the wider world - needs to be revisited in a digital age, Reding’s ambitions on this front are counter-productive, protectionist, anti-American and ultimately would be hugely detrimental to Europe’s prospects in a global digital economy.

The right to be forgotten is just the emotive tip of a very dangerous iceberg.