The insanity of 'being forgotten'.

The European Court of Justice has just told the world that they are clueless, inept and embarassingly short of knowledge on how the internet works. As you're almost certainly aware, they have ruled that Google is a data controller” under the 19-year-old European law on data protection, and as such could be required not to display links to information that is “inadequate, irrelevant...or excessive”.

There is no world in which any of this makes sense at all. However, let's break it down into various elements, because it's more fun that way.

Do people have a right to be forgotten? There's plenty of material out there on people which is less than complimentary, and much of it is also wrong. A lot of that data is also historical in nature, but unlike incorrect information that just sits inactive in a book or journal, this information can still remain very active. Take the example of Max Mosley, who was involved in a scandal some time back. For most of us, that particular episode is already forgotten, but if you do a search on Google you may (and I stress the word may) see that Google is giving you auto suggest options which relate to the incident. I'm not seeing them on my searches as you can see:

However, other people may. Now, there's not an awful lot that Google can do about that, since Google reflects what the rest of the world does, and if lots of people write about a particular issue, it's going to pick up on that. The real issue is that the content is already out there and will continue to remain out there, whatever Google does. Does Mr Mosley have a right to some sort of protection? Sure he does, but that protection needs to come from him talking to the original publishers of content, not the people who are providing it. Besides, when I see that material, I can also read the entire story and make up my own mind. So whose rights are more important - his to try and make it more difficult for me to find publically available information on him, or mine, to allow me to easily find that information? You may well have some sympathy with the man, which is fine. How about when we look at other people who are requesting that information about them is removed from Google's indexes, such as people with a criminal past, drunk drivers, sex abusers and so on. Do they have the right to be forgotten, or do I have the right to know that they might be living across the road from me? A lot of the people requesting the 'right to be forgotten' are doing so because of their criminal convictions. In the course of every day life many of those people will have the right to have their conviction 'spent' under current UK law, but that's a rather different issue. So the first point - who has the stronger right?

The 'right to be forgotten' isn't a right at all - since they are NOT being forgotten, just not indexed by Google. It would perhaps be more sensible to call it a 'right to censor material about me that I don't like without actually contacting the original publishers of the data'. Moreover, Google intends to indicate in search results if material has been removed as a result of this requirement. Now - if you do a search for 'Phil Bradley' and Google tells you that it has been required to remove material, isn't the first thing you do going to be to go to another search engine? Or if you can't be bothered to do that, go from google.co.uk to google.com since the ruling only applies to the UK version of the search engine.

Why just Google? As we all know, there are plenty of other search engines out there (and if you need them, I've got a list of over 200 search engines), and although Bing is attempting to create a right to be forgotten feature, that's 2 down, 198 to go. And what about new search engines? Who is going to monitor those? No-one, as far as I can tell. So the ruling doesn't actually work on these grounds either.

Next up - who makes the decision on what is in the public interest, as opposed to an invasion of privacy? It's not going to be the courts. Google is going to create a panel who will sift through these requests, and it's got a number of high profile people on it, but they're not going to be wasting their valuable time doing it day after day. It's going to get passed onto some lowly Google employee who makes decisions based on... well, I'm really not sure. Who is going to represent the public interest? What is the 'court of appeal' over this? Deafening silence.

So we've reached a stage when the European Court of Justice is handing over control of information (or at least partial control) to an American corporate. In what world does this make any sense at all?

So there isn't a single sensible reason for this ruling. This will not protect people, either the ones who want to be forgotten, or anyone else. It's ineffective because it doesn't appear to relate to all search engines, and it doesn't even cover all Google search engine variants. It's an abrogation of control to an unaccountable, unelected body. Insane.

Comments

[Charles Oppenheim]

Although the action was against Google, the decision applies to all EU-based search engines. There was some complex legal argument justifying why Google was considered to be EU-based, and those arguments would be applied to other search engines. No doubt Bing took good note, and other search engines that are "EU-based" will have to do the same. The action was not against the original newspaper, and rightly so, as it was arguably not processing personal data as Google was. To suggest that CJEU has no idea how the Internet works is wrong. It was well aware of the implications of its decision, which was correct under EU data protection law. I have very mixed feeling about the decision, but don't agree with commentators who say it was crass or stupid.

[Phil Bradley]

Thanks as always for sharing your opinion and shedding light on things Charles! :)
I fully understand why the CJEU is limited to Europe, but it's really so flawed as to be pointless. I can go directly to google.com or any other search engine not based in Europe to see the information that has been deindexed from European based engines.

This does not mean that someone can be forgotten, merely that it makes it slightly more difficult to find them. It also therefore favours people who know how to use the net over those who really don't have much of an idea. To enact something that they know isn't going to work is, IMO stupid.

While the ruling relates to all European based search engines there's no way of keeping a sensible record of what those are; and the person who wants their data removed will (I assume) have to visit each in turn to request removal, and to check that this has happened. I simply don't see how this is going to work on a practical level.

I assume that they also knew that Google would indicate when links had been removed, and that any interested person knew that they could simply change engine to get the data that's missing. Now, if they KNOW this is likely to happen, they know their decision will result in - well, not a lot really. Again, I don't see how this is sensible.

It remains farcical, but if you're able to illuminate it further, I'd be grateful! :)

[Pete Williams]

A couple of points. You state that “a lot of the people requesting the right to be forgotten are doing so because of their criminal convictions” and also mention “sex abusers, drunk drivers”, etc. But surely this issue is relevant to all of us? How about a young LIS professional trying to get a job? As we live a greater part of our lives online then we will all make mistakes, not necessarily “criminal” ones but potentially embarrassing and damaging. So I believe there is a conversation to be had about how we deal with this issue. Must everything we do online be visible forever in the interests of an ideal of openness? In this context, the example of Max Mosley is a little disingenuous as he is both an unsympathetic character and someone who is rich enough to look after himself. Who knows, perhaps one day you might regret your casual use of the word “insane”!

You also state: "Now, there's not an awful lot that Google can do about that, since Google reflects what the rest of the world does, and if lots of people write about a particular issue, it's going to pick up on that." This is a bit simplistic as Google does not simply reflect "the world" neutrally and present information in a completely unmediated form. Rather, it highlights information on certain websites more than others. This is relevant because it is another reason to take seriously the right to be forgotten.

It’s hard for me to comment on the impracticalities of enforcing the ruling and I'm happy to bow to your undoubted knowledge of this area. But I would say that practical barriers can be overcome and should never be an argument for doing nothing; and also that Google already removes links to copyrighted material on the request of copyright holders.

For me, this ruling is interesting because it exposes the tensions between personal privacy and freedom of information. Our profession is - rightly - in favour of both of these things. But you can't always have both, absolutely. And to be so shrill in your denunciation makes me wonder if you feel the latter always trumps the former?

[Phil Bradley]

Hi Pete, thanks for your thoughtful comments. Yes, we can make potentially embarrassing mistakes. If it's on a social media network, there are usually plenty of ways of erasing the mistake, or deleting the tweet. If it's on someone else's site then we can ask for it to be removed - or if it's libelous there are other steps that we can take. However, a law like this does cover everyone, criminals included. Now, I'm perfectly happy for people to have done their time, atoned for their mistakes and to move on. However, that information has always been available for people to find, if the crime has been reported in the newspapers for example.

Everything that we do online IS available for view, and this ruling doesn't change that. It simply makes it harder for some people to research. If you want material entirely removed that's a different discussion, and it's really at that point we move into the deep murky waters of censorship.

The Max Mosley example demonstrated that what you see if you search for him isn't the same as what I see when I search for him, so there is a failure in the ruling right at that point anyway.

When a court tries to make a ruling and that ruling does not work, could not work and never WILL work I stand by my description of it as 'insane'. What would you call it?

Yes, Google does rank some material higher than others - so content on the BBC site for example would get ranked higher than on mine. So Google has to pull the link to the BBC article, but the article is still there, it's still available for people to visit the BBC site and search for it, and it can also be seen by searching .com rather than .co.uk. So whatever the ruling says, and whatever Google does, it's not going to change the fact that someone has NOT been forgotten, it's just slightly harder (but not much) to find them again.

Let me be quite clear. Unless the original material is removed, and every copy of it, every reference, from every webpage and every server - *in the world* that person or act is NOT going to be forgotten. That is never going to happen.

Your example of Google removing copyright links is I am afraid, entirely irrelevant in this case. When someone breaks copyright it's a clear violation of the law, and it's straightforward - has the copyright been violated or not. However, in the situation that we're looking at here, it's going to be a Google panel that decides if material should be de-indexed. They are essentially going to be in a position to say that crime x is not as bad as crime y and one person should be de-indexed, and not another. There is a clear subjective decision that is being made, and I'm not comfortable with that being made by an American corporate which has no come back, there's no appeal system, there's no-one who can represent the public and so on. Other people may be happier than I am; but I've never been one to put my trust in Google.

Yes, I believe in the freedom of information. But we're not talking about 'personal privacy' and that you think so is quite frankly worrying. That someone has material about them listed on websites, or in newspaper articles and so on means that there's absolutely no personal privacy in the first place. It's more a question of 'how difficult is it going to be to find the information that is publicly available?'

Now - if a member of the community comes in and asks for information on Mr or Mrs XYZ and they're sure there's something about them on the net but they can't find it with Google - to what extent is the information professional going to help them find it. I would personally hope that they would do everything they could do in order to answer the query. Others may have different views.

[Tim Turner]

The Court doesn't make the law, it simply tries to interpret it. There may be difficulties in trying to apply the 1995 Data Protection Directive to the way Google works, as it predates the internet as we know it now. Nevertheless, to treat Google as if it is an entirely natural force that cannot be controlled, rather than an entirely human invention whose codes and practices can be governed and constrained by the law, is the insane proposition in my opinion. European law values and protects the fair use of personal data; Google processes personal data in Europe, and is therefore subject to European law.
The language of 'right to be forgotten' might be daft and unhelpful but the idea that European citizens should be denied their rights over out-of-date and potentially inaccurate data is very troubling. This case sends a message: freedom of expression and privacy do need to be balanced against each other. The Google view of the world is that every scrap of data is up for grabs, to be devoured, repackaged and monetised; the ECJ judgement is another view of the world, where the individual has rights in that process. I'm all for it, however impractical it might seem.