Do you have the right to be forgotten online?
- ORESTI PATRICIOS
- 25 Jun 2014 (South Africa)
Human rights are not absolute. The right to freedom of speech does not ‘trump’ hate speech or libel. We cherish our right to freedom of expression, but that doesn’t mean we can stand up in public (or even private) and spout racist slurs. One of the principal purposes of the law is to protect the individual from harm or exploitation. Most democratic constitutions outline the framework for this — the laws that protect the minority from the majority, or the weak from the strong, yet balance this with a view to the greater good, or the overall benefit of the majority.
In 1998, a Spanish lawyer, Mario Costeja Gonzalez, had his property auctioned by the Spanish Labour Ministry, to cover his debts for unpaid taxes. The legal notices—you know, those tiny ads in the classifieds section—were published in a Barcelona newspaper, La Vanguardia, which later put its archive online. Years later Gonzalez was finding that these ads were featuring prominently on Google searches. He believed it was harmful to his reputation, and so he applied to the Spanish courts, and eventually to the European Court of Justice, to force Google to remove the link from searches.
Google defended its case on the grounds that all searches are performed on servers in the United States, and only advertising is sold in Europe and elsewhere. The Court ruled that Google was one entity, and as such had to abide by the laws of the countries in which it operates: in this case, the EU Charter’s Article 7: “Respect for Private and Family Life” and Article 8: “Protection of Personal Data”, which states: “Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.”
Many people saw the result as an attempt to censor Google, or worse, to censor the internet. Wikipedia founder Jimmy Wales called it “a terrible danger”; in a letter to TechCrunch he wrote: “We have a typical situation where incompetent politicians have written well-meaning but incoherent legislation without due consideration for human rights and technical matters.”
The headline on the International Business Times was: “Now we can all rewrite history on Google and Facebook.” The Wall Street Journal’s was: “Airbrushing the European Web.”
The answer is it’s not quite that extreme, and it’s not the ‘slippery slope’ that some have suggested… although it does put a lot of the responsibility in the hands of Google. The ruling means that any individual now has the right—at least in Europe—to request Google to remove all search results “for queries that include their name where those results are inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed.” Those are pretty narrow criteria.
Indeed, shouldn’t an individual, who may have been falsely accused of a crime or had false information or a compromising photograph published by a spurned lover, have the right to have those references expunged from the very public glare of Google Search? This is the essence of privacy.
But let’s move the argument into a grey area: what if that person was once involved in a fist-fight in a bar, that was chronicled on Facebook? It may be many years later, he may even have become the most pacifist/zen/loving bloke ever, but every potential employer who searches for his name can be forgiven for assuming that he is violent and therefore not a good bet for employment. Now what if that bloke is a politician? Or a teacher who was convicted of possessing child pornography? Or a doctor who had a slew of patient complaints when he was less experienced?
It’s this ‘slippery slope’ argument that has caused something of an uproar, and one can see why: we don’t want our internet to be censored. We want it warts and all, and we, the people, will decide what information is valid or not.
The European Court has injected some balance in the ruling: the request for the link to be removed can be refused if it is considered not in the public interest or contrary to freedom of expression. The question is: do we trust the search giant to make that call?
Google has set up a committee to review applications. A few influential privacy advocates sit on the panel, including the aforementioned Jimmy Wales. Google received more than 41,000 requests via its webform in the first month, with some 12,000 being filed on the first day. In its case, Google argued that evaluating each case would be a costly exercise, and no doubt it will, but the European Court of Justice said “too bad” (or words to that effect).
The ruling only applies to individuals, not companies or other entities. And remember, the information is still there — the site is not forced to take it down, just the Google Search link, on country-specific Google Search pages, such as google.de in Germany and google.es in Spain. Google will also have a notification on the results page indicating that results have been removed. So a really determined searcher can go to google.com and find the “forgotten” links there.
We are a generation that has grown up with an expanding digital footprint, and we have grown used to free access to information. When Google was censored in China, we were outraged. When we heard that the EU was forcing Google to “forget” certain people on request, we were incensed. The outrage and anger, however misplaced, was a good thing: we, the people, are on the alert. We will oppose censors. We will support those who seek to free information, and we will fight to keep a free and open internet.
A world in which privacy ran roughshod over freedom of speech and freedom of information, would be the worst of worlds. A balance of rights is crucial, and I’d weigh in that in recording history for future generations (which the internet is doing) freedom of speech is everything. DM