Does the “Right to be Forgotten” ruling protect privacy, or limit free speech?

The ‘right to be forgotten’ ruling brought about by the European Court of Justice has opened up an interesting philosophical and legal debate: can you ensure personal privacy online whilst also defending freedom of the press?

Critics have argued that the ECJ ruling presents a clear threat to press freedom. Whilst there are certain problems with the way in which the ruling has been implemented, these problems are easily resolved with effective oversight. However, the greatest weakness of the ruling appears to be the somewhat archaic notion of privacy that it is trying to re-establish. In an age when people upload every facet of their life onto social media – what they are watching, what they are eating, where they are, who they’re with, who they’re friends with, who they’re in a relationship with etc. – is online privacy even feasible?

In theory, the ECJ ruling protects privacy for regular people whilst preserving freedom of expression when there is a public interest defence. The right to be forgotten case classified Google as a “data controller”. According to the EU, data controllers are “persons or entities which collect and process personal data”. According to European law, data controllers have an obligation to make sure information on their site is relevant, accurate and not out of date or an invasion of privacy; for a link to be removed from a search engine, it must meet these criteria. There was also a fifth possible condition added by the ECJ: if the information in question pertains to “people in public life” then a search engine may refuse to delete the URL.

The Internet is the lens through which the world views our lives. The first port of call for potential employers is generally a Google search of someone’s name. In the modern age, it is hard to keep embarrassing material from making itself prominent online. Drunken misdemeanours or minor criminal charges, which would once have remained hidden, can now jeopardise future employment. The availability of “revenge porn” websites on search engines makes extremely personal content public. It is these sorts of privacy violations the legislation is designed to prevent. The legislation is not there to allow wealthy celebrities or politicians or corporations to edit what is reported about them.

There appears to be a cultural shift in terms of interpretation of the ruling. In the United States, the ruling was clearly interpreted by many as an effort to censor the Internet. Professor Jeff Jarvis, from City University New York and author of What Would Google Do?, described the ruling as “a blow to free speech”.

In mainland Europe, the ruling was more likely to be seen as a necessary preservation of privacy. Strong privacy laws are common throughout Europe and extending these to the Internet was less controversial.

A major criticism of the ruling is the lack of transparency over the way in which Google is handling the requests it receives. Google insists that it has a team of paralegals handling the requests. However, it is unclear how large this team is, and the degree of scrutiny each request is subjected to. Google claims to have reviewed over 700,000 URL removal requests since the May 2014 ruling, this amounts to over 3,100 per day.

Google has been accused of deleting links to URLs that it shouldn’t have done. For example, Dougie McDonald was a Scottish football referee who became embroiled in a scandal in 2010 after falsely cancelling a penalty kick. Google initially deleted links to this story upon McDonald’s request. However, McDonald’s case would appear to meet none of the requirements for removal. He was a public figure at the time, and his story was not irrelevant, out of date or inaccurate. The links were later restored.

Critics have argued that Google does not necessarily have to comply with the ruling at all. As the process is hidden, Google could simply refuse, or accept, every request that is brought before them. There is no scrutiny of the process, and therefore Google can get away with a lot, as long as it appears as though it is complying with the ruling. The problem here is a lack of oversight of the search engines. The solution therefore would be to force these corporations to reveal their protocol for handling removal requests to ensure that they adhere to the parameters laid down in the ruling.

It is important to remember that the right to be forgotten ruling does not remove articles from the Internet altogether. The Index on Censorship described the removal of links from Google as “akin to marching into a library and forcing it to pulp its books”. However, seeing as the actual articles remain online and it is just the search engine results that are affected, it is more similar to marching into a library and removing the search catalogue. The ruling states that when a URL removal request meets the criteria for deletion, search engines must remove the URL from their site. The original story remains online. Several media outlets, such as The Guardian, The Telegraph and the BBC, have posted archives of stories that they published but have been removed from search engines as a result of the ruling. The information remains online and is readily accessible, it is just harder to find. The information is also unaffected outside the European Union.

Jimmy Wales, the co-founder of Wikipedia, has expressed concerns that Wikipedia may have to remove truthful articles if requested. There have been instances of nefarious characters seeking to have articles about them removed. For example, two German killers in 2009 sought to have their names removed from foreign media outlets. However, Wikipedia is different to Google. Wikipedia is non-commercial and since it undergoes a process of editing its articles, it may arguably count as a journalistic enterprise. Google has worked hard to ensure that it is not classified as a publisher and so search results on its pages are not classified as speech. Also, most Wikipedia subjects have a public life, therefore meeting the public interest defence.

There are clear teething problems with the implementation of the right to be forgotten ruling, but these can be easily fixed. If resolved, the ruling should have no impact on press freedom. However, there is an irony in the case that brought about the right to be forgotten ruling which may highlight its greatest weakness. In 1998, the Spanish newspaper La Vanguardia published details about the forced sale of properties as a result of social security debts. One of the properties concerned belonged to a man named Mario Costeja Gonzalez. The announcement was originally in print, but eventually made its way online. Mr Gonzalez was frustrated that every time his name was searched online, a link to the original article would emerge. By winning his case and bringing about such significant legislation, the 1998 forced sale of Mario Costeja Gonzalez’s home became international news and was reported in newspapers across the globe. In an attempt to clean his online record, Mr Gonzalez inextricably linked himself to the 1998 debts he wanted to hide. Type “Mario Costeja Gonzalez” into Google and there are around 30,000 search results; “Mario Costeja Gonzalez debt” has 13,300.

The right to be forgotten, if implemented properly, is not a form of press censorship. The press is still free to print what it wants, as long as it is relevant and accurate, and these articles remain online even if they have been removed from Google. However, if the ECJ ruling was designed to protect personal privacy online, then it has a major weakness. When Edward Snowden revealed the existence of the NSA’s global online surveillance operation, few seemed surprised, let alone concerned, that their online activity was being monitored. Perhaps people just accept that, when any moment can be recorded by a complete stranger and instantly uploaded to the Internet, privacy does not exist online. People submit such a vast quantity of information online via social media that it would appear that people have, if anything, embraced the breakdown of personal privacy.

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