The right to be forgotten

On May 13th 2014 the European Union’s court of justice ruled in favour of Spaniard Mario Costeja Gonzalez in his case against Google; one that could have substantial repercussions for the search giant, alongside many other tech companies. The core issue of the case revolved around an individual’s right to be forgotten online, and the responsibility that a search provider has to ensure this is protected. See also: How to make Google forget you

Up until the ruling if there was information about you on the web, chances are it would remain there forever. You could approach a search engine provider and ask it to remove links to the information, but it was under no obligation to amend any entries, although it might agree if the information was damaging and provably untrue. Now the court has decided that ‘An internet search engine operator is responsible for the processing that it carries out of personal data which appear on web pages published by third parties’. This means that linking to data about someone who has expressly asked for the information to be removed would become illegal.

Gonzalez’s fight relates to an event over fifteen years ago when it was reported in two 1998 editions of the Spanish newspaper La Vanguardia that his house was up for auction in order to recover social security debts he had failed to pay. Gonzalez argued that the high profile nature of the newspaper would mean that search results on his name would always return with the story ranking on or very near the top. This would draw attention to an unfortunate episode in his life, and ensure that people would always know it about him even though the debt had been paid and the issue resolved. While the court ruled that La Vanguardia had been perfectly within its rights to initially publish the story, Google’s links to it should now be removed as they compromised his right to privacy.

This sets a precedent where normal people can exercise far more control over the information that people access about them online. The new ruling doesn’t mean, however, that anything written about someone can be removed. There is still allowance for information deemed to be in the public interest, but it does state that in any case where ‘the data appear to be inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed’ links to it should be erased at the users request. If the search provider doesn’t comply with the user’s request then the individuals are instructed to bring the complaint before their local judicial authority, who would evaluate the case and take any action necessary against the provider on their behalf.   

ISPs and search providers have long argued that they are not responsible for any content on the web, merely providing a method by which it can be found. There are also examples where sites involved in illegal activity are delisted at the request of law enforcement organisations, but this instance is different, as the information itself might not be unlawful or inaccurate, just potentially harmful for an individual due to the way in which it is collated and presented. With so many aspects of life now conducted online, it stands to reason that employment, relationship, or business prospects could be compromised unfairly with a simple Google search. The ruling explained this by stating that ‘the effect of the interference with the person’s rights is heightened on account of the important role played by the internet and search engines in modern society, which render the information contained in such lists of results ubiquitous. In the light of its potential seriousness, such interference cannot, according to the Court, be justified by merely the economic interest which the operator of the engine has in the data processing.’

These economic interests could certainly suffer if Google was to receive a large amount of delisting requests, each of which it would need to explore and act upon. Currently much of the web cataloging for Google’s index is handled by automated software, but it would be very difficult to evaluate these new personal detail requirements with those tools. It stands to reason then that human operators would need to be employed, with the inherent costs involved. A more drastic scenario could be that Google and other search companies relinquish their European offices and return to countries where the ruling doesn’t apply.

So far Google has kept quiet counsel about its intentions, but did release a short statement in which the company expressed that, “This is a disappointing ruling for search engines and online publishers in general. We are very surprised that it differs so dramatically from the Advocate General’s opinion and the warnings and consequences that he spelled out. We now need to take time to analyse the implications."

The mentioned Advocate General was Niilo Jaaskinen, who issued a report from the same European court of Justice back in June 2013. In this he examined the more technical notions of where the data was processed - Google say it was on its US servers, with the Spanish office mentioned in the case merely being used to organise advertising - and of whether a ‘right to be forgotten’ was actually applicable to a search engine provider? His opinions seem to have had little influence over the final verdict and the contrast of the ruling will have come as a hammer blow to Google. Jeff Jarvis, professor of Journalism and author of the book ‘What Would Google Do?’ tweeted his dismay at the ruling ‘EU's 'right to be forgotten' is a blow against free speech’, but was challenging by Swiss Futurist Gerd Leonhard who replied ‘'everything that happens must be known' - is that what you are proposing?  I think EU decision on Google is a suitable 1st step’.

Whichever side of the argument you adhere to, the issue of a permanent public record of your activities being so easily accessible, is one that needs serious thought. Such has been the rapid growth of social media, mobile technology, and ever more sophisticated search capabilities, that the implications of its use are still being discovered. In real life we can make mistakes and eventually live them down, but online they will follow you wherever you go. There are no new towns to move to when you want to start again. Maybe this ruling will start to rectify that.