Enough time has passed between the ECJ announcement in May and the initial stormy reactions from both mainstream and social media that it is now possible to perceive the wood for the trees, and to separate fact from fiction and fantasy. First of all, this is about safeguarding individual rights to privacy, and providing some measure of control over the personal data processed by internet search engines (Google in this case). It is definitely not about erasing personal data from the web, as you might have been led to believe from the initial hue and cry following the announcement.
Secondly, the ruling left it to individuals to approach the search provider and request removal of links to information that are ‘inadequate, irrelevant, no longer relevant or excessive’ from results of searches conducted on their name. However, it is up to the search engine provider to work out if it is appropriate to remove or retain said links, in the public interest. In the latter eventuality, the individual can chose to take the search provider to court in his/her national jurisdiction.
Also, several developments have occurred since this landmark ruling was made in favour of Mr Gonzalez vs. Google Spain, including the take-up of such requests by Microsoft's Bing search engine. However, according to an article on IP-Watch, this ruling is akin to opening Pandora's Box because it throws up a host of challenges, such as:
- Privacy versus free speech - the ruling effectively asks search engine providers to make a judgement call on two competing rights of free speech versus privacy. This arguably goes against the raison d’être of search engines as trusted source of comprehensive search information, and not selective parts thereof.
- Lost in Translation - The Right to be Forgotten is now accepted as a European Principle, but it is still open to subtle differences in translation, interpretation and implementation among the various member states. Furthermore, because this ruling only applies to Europe, the removed links may still show up in other countries, unless #RTBF becomes a globally adopted principle or if the search provider decides to remove the search links globally. It is thought this differentiation could lead to fragmenting of the web in various jurisdictions.
- #RTBF overload - Requests to remove links to personal information hit over 70,000 within the first few months of the ruling, which undoubtedly placed some burden on Google (and likely do so eventually for other major online players such as Facebook), but perhaps more importantly this also provides an indication of the sort of personal information that people wish to delete (see related article about removed links).
- FUD Factory - The scale of coverage, and misinformation, associated with this ruling is huge, according to international advocacy group, EDRi. They also contend that the number of links removed by European Right to be Forgotten is nothing compared to the scale of DMCA triggered links removal, where it appears Google has had to delete ‘hundreds of millions of search results’ without anywhere near the same level of attention.
Based on the above observations, it seems an element of perception manipulation may be at play with regards to the European right to be forgotten, especially given its lack of global scope and the fact that only links are removed (not the actual content). This gives individual requesters some illusion of control over information in a media (the web) that is not necessarily designed to be manipulated as such. Furthermore, search engines may be an unfair, easy target since removal of links only make it more difficult, but not impossible, to locate users personal information even within Europe.
This ability to control access to personal information may be a good or bad thing, depending on who is looking and why. Everything rests on the motive of the searcher or 'hider' of personal information. Paedophiles, terrorists, ex-convicts, or even drunken antics in Magaluf, may wish to be forgotten, but is that beneficial to the interests of potential employers, neighbours or partners?
Do we need to know everything, or should we all have some kind of adjustable online reputation filter? What about privacy and forgiveness for reformed offenders? So many questions and not enough answers, as we continue to evolve into a global digital society. Whatever the outcome the signs are clear that the debate and tension between free speech and privacy is far from over.
