EU Right to be forgotten – what’s it all about?

Last week it was announced that a number of apparently sensible articles had been excluded from Google SERPs. One worrying case was an article written by the BBC’s economics correspondent Robert Peston, about the mess Stan O’Neal had made of Merrill Lynch while he was chairman of that company. A storm of indignation followed swiftly and inevitably. But what exactly is going on here, should we really fear for our freedom of speech?

Should Google be deleting things as part of the right to be forgotten?
Should Google be deleting things as part of the right to be forgotten?

The Right to be Forgotten (RTBF) furore really kicked off back in mid-May of this year when the Court of Justice of the European Union ruled that Google Spain was bound to remove the links to some articles that mentioned a Spanish man called Mario Costeja González who had his flat sold by the bailiffs to pay off his debts. Called the Costeja Ruling for short, you can read more about it on the Wikipedia page.

Now some have been saying that this is a disaster for free speech. Who could disagree that this looks like censorship pure and simple? Danny Sullivan of reckons this is censorship and a lot more besides. The Guardian gave instances of articles that appear to be in the public interest but were taken out of the Google index. They said that these removals “effectively amounts to censorship“.

The Index on Censorship agrees and called it a “poor ruling clumsily implemented“. For others Costeja creates an existential crisis for Google. Marcus Wohlsen at Wired reckons that this ruling opens up cracks in the company’s image as a scientifically flawless and impartial project, by reminding us that human intelligence (and all that implies) lies behind it.

However, it appears that there is another take. For IP and media law expert Paul Bernal, the ruling may be an example of Google deliberately overreacting to the legislation it finds costly and onerous (and he isn’t the only one to think this). As there were 40,000 requests in the first four days of the ruling, each of which would have to be examined individually, you can imagine that this could become quite expensive. Presumably Google hopes that public pressure would then be brought to bear on the EU to change the law.

So, how on earth did the EU get into this tangle? According to Ryan Heath (@RyanHeathEU), the EU spokesman for digital technology, the source of the problem lies with European governments not having updated data protection laws for the Union that have existed since 1995, so that they take account of the digital world. He explained on the BBC radio programme PM on Thursday 3rd July that, “[as] national governments weren’t willing to agree to proposals that the European Commission had made to update those laws, a legal vacuum did exist when this court case emerged. They didn’t provide a lot of guidance and effectively they’re raising as many questions as they’re answering in that ruling.”

So, yes, the ruling is a bit daft, but this is only because EU governments have not got their act together. Heath goes on to agree that deleting Robert Peston’s article was not a good move, but surmised that it may be because Google feels it is cheaper to agree to all these requests rather than sift through each to determine whether it is valid or not.

Interestingly, Heath gives an example of working with Google to de-index a post that occurred before the Costeja Ruling that most people would probably agree with. In his capacity as an author, Heath wrote an article on gay marriage that included some interviews with gay couples. Later one of these people was given a diplomatic posting to an African country with strong anti-gay laws. Heath and the person asked that his article be de-indexed, so they didn’t find them self in serious trouble – possibly life-endangering – in the repressive country. Most of us would agree that sounds like a great idea and, in this case at least, freedom of speech be damned.

In conclusions Heath said that he believes European national governments should come to an agreement about data protection legislation. It would be hard to disagree with that. On his Twitter account he helpfully links to a EU factsheet on the current situation with the Right to be Forgotten in the EU.

Surely the fact remains however that the ruling as it stands does create a situation in which censorship is inevitable? No, not really. David Meyer on goes into greater depth about how the court ruling is worded. When you actually read it, the ruling was made because there is no public good from learning about Mr Costeja’s earlier misfortune with the bailiffs. If there was benefit for the public, the ruling would have gone the other way. So despite the fuss about censorship, the court said they would have ruled against Costeja if there had been “preponderant interest of the general public in having… access to the information in question”. It is clear then, if Costeja had killed a man, he wouldn’t have had the right to be forgotten.

This makes good sense – although admittedly a lot of hard work for Google. Here we might benefit from learning more about the basic philosophical idea underpinning the Right to be Forgotten. Eugene K Chow explains that it comes down to the European notion about honouring the dignity of the individual, and one’s privacy being an integral part of that dignity. This stands in contrast, he writes, to “American laws [which] frequently prioritize free speech at the expense of individual rights.”

There is probably no right answer in finding a balance between rights and dignity of individuals versus the imperatives of free speech. We can however see that much of the outrage about the EU court ruling is actually somewhat premature. Certainly Google should not be censoring public-interest information. The Right to be Forgotten will involve extra costs for the company and may be difficult (or even impossible) to implement, but the idea itself is a humane one.

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