Outside the Beltway

The Absurdity Of The “Right To Be Forgotten”

The so-called "right to be forgotten" created by Europe's highest court is unworkable, and ultimately absurd.

Doug Mataconis · Monday, June 2, 2014 · 13 comments

Last month, the highest Court in the European Union ruled that search engines such as Google must offer European citizens a method by which to remove information about them from the search engine’s results. This right apparently exists regardless of whether or not the information which someone seeks to have removed is true or whether or not it was placed their by the person in question personally or with their consent.  Indeed, in the case that was at issue before the court the complaining party was objecting to the fact that a Google search of his name led to articles in a Spanish newspaper that were, by all accounts completely accurate. Notwithstanding that fact, the Court ruled based on existing European law that citizens of the European Union have a right to have material they consider embarrassing, or indeed all material, regarding them removed from search engine results.

Almost from the moment that the ruling was handed down, Google began receiving what I supposed you’d call “take down notices” from European citizens who wanted to have information about them removed from Google’s servers. According to some reports, more than 12,000 Europeans sent in such requests on the first day alone. Rather than trying to fight the requests or the Court’s ruling, it appears that Google is trying to comply with the request:

Google’s privacy battle in Europe, between the “right to be forgotten” and the “right to know,” has only just begun.

On Friday, the company announced a basic framework to comply with a landmark ruling by Europe’s top court that requires Google and other search providers to consider individuals’ requests to remove links that they say violate their privacy.

The framework included a new online form for making such requests, which prompted strong interest in its first day. More than 12,000 people asked Google to remove links, according to a person who spoke on the condition of anonymity.

But it remains to be seen how Google will determine which links violate a person’s privacy and which links should remain available to the public. The decisions are likely to be complex, and the requests are expected to cover a wide range. In the past, some Europeans looking to erase their online histories had criminal records, while some wanted to remove outdated or erroneous information.

“It creates an unworkable situation,” said Fred H. Cate, a professor at Indiana University who specializes in privacy. Companies “now have to have some process for determining when and under what conditions to remove links to material that any European finds objectionable,” he said.

Google is trying to walk a fine line. While it is aiming to comply with the high court ruling, it is also looking to limit the impact on its global operations. Company executives have argued that the ruling will curtail the free flow of information online and could inhibit innovation.

To foster discussion on the issue, Google is creating an advisory panel of privacy experts, regulators, academics and company executives, including the Wikipedia founder Jimmy Wales, who has been a vocal opponent of Europe’s legal decision. The committee will offer recommendations by the end of the year about how the “right to be forgotten” ruling could affect the company’s presentation of search results to its users worldwide.

“After this ruling, it’s clear that we need to think deeply about the realities of the Internet age and we must find new, innovative ways to improve privacy protections for society as a whole,” José-Luis Piñar, a former Spanish regulator who will be on the committee, said in a statement.

Two weeks ago, the European Court of Justice enshrined the “right to be forgotten” on the Continent, where privacy has long been a paramount issue. Since then, Google, which holds a roughly 90 percent market share across the region, has been trying to respond.

So far, Google has only outlined the basics. Its new privacy committee has not met to discuss the ruling, and more experts will be added to the group, according to the company

Not surprisingly, though, complying with the Court’s ruling is much easier said than done:

In the first few days after the ruling, about 1,000 Europeans asked Google to take down links, with about half having criminal convictions and half not, according to people briefed on the requests. The requests included an actor seeking to expunge links to articles about an affair with an underage girl and a doctor seeking to take down negative reviews.

Search companies will face a considerable challenge in responding to the requests. Google alone handled more than 23 million requests in the last month to remove links to copyrighted material around the world. But much of those efforts are automated and address straightforward issues like taking down a link to a stolen movie.

Dealing with individuals who bring complaints in Europe promises to be more complex because it would most likely require additional employees to grapple with less clear-cut decisions. Google now has a web form for Europeans to request that links be removed. The company also said it plans to create an advisory committee to “cultivate a public conversation about these issues.”

While the ruling appears to newly enshrine a “right to be forgotten,” Europe has long taken an aggressive stance on individual rights in the digital age. Each nation in the European Union already has a data protection agency

(…)

[T]he tech industry has portrayed the decision as a blow against the free flow of information on the web and a victory for those who want to cover up past misdeeds — including pedophiles, corrupt politicians and unscrupulous business people.

“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,” Eric Schmidt, Google’s executive chairman, said in recent comments on the decision. “Google believes, having looked at the decision, which is binding, that the balance that was struck was wrong.”

Historically, many requests have been aimed at blocking wider access to what many would view as part of the public domain.

Indaco Systems, a Romanian company, operates a website that publishes Romanian court proceedings, which are released by the government. The company has received hundreds of complaints this year from citizens who are concerned about public access to court filings that involve them. Many of the complaints are spurred by Google links leading to the case records.

Adrian Nicolaide, a lawyer for Indaco, said “the information is either public — and in this case anyone should have access to it — or it is not public, and the public should have no free access.”

“Google indexing official public information leads that information to a whole new level of publicity, but it does not infringe the very purpose of public information,” he added.

The bizarre thing about this Court ruling, of course, is that removing information from a search engine’s servers doesn’t remove it from existence on the Internet. The newspaper article, bad review, negative blog post, or whatever it might be that someone doesn’t like to see associated with their name when they type it into a search box is still going to be out there and, presumably, discoverable by someone who knows where to look. Granted, the fact that it doesn’t show up on Google makes it more difficult to find, but given the nature of the Internet the idea that it won’t be found at some point is simply implausible. Indeed, if you take the European court’s decision to its logical conclusion, then Europeans should have the right not only to have information removed from Google, but should also have the right to have it removed from the servers of the sources that the search results point to. In other words, the ruling would give seemingly give everyone in Europe the right to create their own Big Brother style memory hole, removing from existence information about them they don’t like even if it’s truthful.

There are, of course, situations where information appears online that does real damage to a person’s reputation, or even the way in which they earn a living, and that information turns out to be false. In our legal system at least, those types of statements fall under the law of defamation and there are means by which someone who has been damaged can seek compensation for their losses and seek to have the false information taken down. The European court’s decision, though, goes far beyond defamation and, while it may have a basis in European law, it strikes me as being bad policy that has the potential to establish a very bad precedent. Why should someone have the right to hide truthful information about them, even if it may be embarressing? Why should they be able to prevent search engines from linking to public information databases because, for example, it might provide information about a lawsuit they were involved in or criminal charges that were brought against them? If the information is true, then there ought to be no barrier at all to its availability, and neither Google nor any other search engine ought to be responsible for the fact that this information is ought there and contained within their search index.