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The EU’s “right to be forgotten” is a bad idea, and Google is handling it exactly the right way

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This week, Google (s goog) has begun notifying British media outlets that some of their news articles may not be available to UK audiences as a result of a European Union court decision enshrining the “right to be forgotten,” which allows people to have unpleasant information removed from Google’s search index. My colleague David Meyer argues that Google is doing this deliberately in order to create a straw man: in other words, to give the impression that the law is worse than it actually is. I disagree, however — I think Google is doing a good job of showing us why the law is a mistake, one with potentially huge consequences for free speech.

As Danny Sullivan of MarketingLand has outlined in an overview of the issue, Google has removed a number of stories from leading British news outlets — including The Guardian, The Daily Mail and the BBC — and it has been sending notices to those outlets to inform them of the removals. But it doesn’t provide much detail (or really any detail whatsoever) about why these particular stories have been blocked, who petitioned for their removal, or why some terms have been singled out and others haven’t. The articles include:

  • Stories from The Guardian and Daily Mail from 2010 about a Scottish soccer referee who lied about reversing a penalty (links to the Guardian story were reportedly later restored after the newspaper complained).
  • A Guardian article from 2002 about a man who was accused of fraud but was later found to be not guilty.
  • A piece from the Daily Mail about a couple who had sex on a train.
  • A Guardian article about how workers in France were decorating their windows with Post-It notes.
  • A BBC column about former Merrill Lynch chairman Stan O’Neal.
  • A story from The Daily Mail about staffers at the Tesco supermarket chain who criticized their employer on social media.

The point made by David and other Google critics is that in each of these cases, if the company believed that the article included in its search results is journalistically defensible, then it should be protesting against those removal attempts and forcing them to be decided by a court, because the decision that allegedly caused the removals — a ruling by the Court of Justice of the European Union — includes a clause that says data can remain if “it is justified by the preponderant interest of the general public in having access to the information in question.”

Is Google trying to stir up controversy?

By removing articles that seem to be clearly on the other side of this guideline — such as news stories about the disgraced chairman of a publicly-traded corporation, or an admission of fact by a football referee — Google’s critics argue that it is deliberately over-reacting, in an attempt to stir up controversy about a court decision whose specific application hasn’t even been decided yet by the EU’s member states, and whose outcome might not be as bad as it is being portrayed.

Paul Bernal, a lecturer in media law, seems to be arguing that Google deliberately removed articles by prominent journalists such as Robert Peston of the BBC — who wrote about how his column had been “cast into oblivion” by Google — in order to gain support for its campaign to blunt the force of the EU law, and Guardian staffer Chris Moran says the clumsy way in which Google has implemented the removals (including posting a note at the bottom of a search page even when nothing has been changed) is a deliberate attempt to make it look bad. As David puts it:

“If Google is trying to prove that the system is unworkable, then it’s succeeding — only the system it’s apparently operating in isn’t the system the CJEU described. It’s a straw man, a nastified version of the actual legal framework that makes that framework easier to attack.”

Let’s assume for the moment that Google has actually orchestrated this process in as ham-handed a way as possible in order to make it look more draconian than it is, and has even cherry-picked certain journalists as targets so that it can get them on its side (a Google spokesman has denied that the company is deliberately trying to make the law look bad). Whether you believe this is justified or not hinges on whether you agree with the “right to be forgotten” law in the first place. If you believe it is wrong, then having Google fight against it is just as defensible as when it tried to stand up against Chinese censorship by making it obvious that searches for terms like Tianenmen Square were being censored.

Google is doing what it can to fight a bad law

The point made by Paul Bernal, Chris Moran and David is that Google should leave all of this decision-making to the courts, and that will result in a better outcome — because a court is in a better position to make those decisions than Google is. But I think a court is just as likely, if not more likely, to make it worse, and the kinds of takedowns that Google has so far shown us are not nearly as far-fetched as Google’s critics would have you believe.

David argues that some or even all of the Google searches that have been modified so far would be covered by the “public interest” clause in EU privacy law — but at the same time, he also notes that those laws are in the process of being updated and likely strengthened as a result of rulings like the Court of Justice decision. How do we know that a court will see the public’s right to know about a football referee’s misdemeanors, or even the chairman of Merrill Lynch’s transgressions, as being stronger than the right to be forgotten? We don’t.

I know that free speech is not as sacrosanct a principle in Europe as it is in the United States, and the public’s right to know doesn’t automatically trump an individual’s right to privacy. That may be a positive social goal, but as a result of that tendency we’ve seen British courts hand down “super-injunctions” that restrict the right of the press to even mention that a court case exists, and other infringements on the right to know and freedom of the press. Do we really need more mechanisms for that kind of thing to occur? I don’t think so.

The reality is that the right to be forgotten could allow powerful individuals to effectively censor search results even when the facts contained in them are undisputedly correct and have some historical news value. That’s something worth fighting against, and Google is using all the tools at its disposal to do so. If it helps raise awareness about the issue and its drawbacks, then so much the better.

Post and thumbnail images courtesy of Shutterstock / Bahri Altay

21 Responses to “The EU’s “right to be forgotten” is a bad idea, and Google is handling it exactly the right way”

  1. slfisher

    Google is in a no-win situation here. If they didn’t respond to all the takedown requests, they’d be in violation of the court order. If they spent the time to look at all 250,000 of them and appeal them, it’d cost them a mint. If they deleted them without telling the sites that hosted them, people would have blasted them for that, too. Just how did the “right to be forgotten” proponents think this was going to work? What processes did they expect Google to use?

  2. cooldoods

    Would these journalists be better served by not being notified by Google that their articles may no longer be indexed by Google’s search engine? It is not up to Google to decide whether a takedown attempt is justified or not. If the journalist wants to contend that the takedown is unjustified then they should do so, so that Google can have some basis to reverse the takedown.

  3. boloss

    I know that in the US you hate regulations, and I think this is bad for the citizens (like unregulated food additives…). Anyway this is the US citizens (thru their government) choice.

    Now google is making money from Europeans citizens, that have a different cultural view on topics like privacy or “right to be forgotten”. They must respect these cultural differences, especially for a company that claims to be multi-cultural and not doing evil.

    Is a US private company like google entitled to tell Europeans what they want? I do not think so. If they want this right, I would like to vote for their board, and eventually their CEO.

    If you are not convinced, take it the other way around. What would happen if a Dutch company sold alcohol to 16yo people in the US? Could they say “listen in the Netherlands we believe it is ok, so deal with it.”?

  4. Jack Ngai

    I originally agree that this law is stupid, but then I heard this story on New Tech City ( about someone that died and all his friends find on the first page of a Google search for him is a macabre photo of his dead body. Can you imagine this happening to your love ones?

    We all think “just ask the source to remove it” instead of asking Google. But what makes Google’s algorithm so right to put that photo in the first page of hits? Google’s algorithm doesn’t take people’s emotion into consideration. Wouldn’t it be better to bury the link to the 2nd, 3rd or maybe even 10th page of search results and have the first page link to obits instead?

    The law maybe stupid, but why does Google have absolute power over how a search about you is curated? I agree that once information is online, it is and should be there forever. But shouldn’t we have a say on what we think is more important?

    • A Ch0w, sneeze

      Ask the source to remove it. Bing, and Duck Duck Go and a hundred other search engines still index it. Why is it ok to ask Google to remove it but not the others?

  5. A Ch0w, sneeze

    Google is not being rebellious. It just doesn’t want to be responsible to decide what should be removed (this requires a new department staffed with people; people cost money and time), so it just deletes anything an European requests under the new law.

    • boloss

      Don’t you think it costs money for pharmaceutical companies to test drugs and food additives to comply to specific European laws?
      It does, but they do it anyway because they still make money.

  6. prophetzarquon

    Forget take-downs.
    Stop censoring the internet.
    Information is not property. IP law is fundamentally and morally wrong.
    Information should never be criminalized, no matter how unsavory you find it.

  7. Larry McKoder

    Google’s CEO once said that “every young person one day will be entitled automatically to change his or her name on reaching adulthood in order to disown youthful hijinks stored on their friends’ social media sites.”

    I think the right to be forgotten is a far better idea. We need to bring this law to the United States.

    Today you can learn my age, my home address, my home phone number, names of my family members, and so on without ever talking to me. I didn’t publish any of this information online and I don’t want this information online and if it is online I don’t want it to be findable via google.

  8. cedricmia

    What a ridiculous hysteria.

    If you really cared about the issue you would not write about ‘right to be forgotten’ like most commentators, because there is none.

    Just re-read the court’s decision.

    It is a right to selective deletion, in a search engine only, within very strict boundaries and if there is no prevailing of the general public in having access to that information upon a search relating to the data subject’s name.

    Comparing the court decision with the censorship of Tianenmen Square is distasteful, deceiving and shows you have never taken the time to read the court’s decision.

    Of course mistakes will be made during the first uses of a new system. Problems will arise and will be fixed. It doesn’t mean the court’s decision is wrong. It doesn’t even necessarily mean that Google is deliberately sabotaging it. Time will tell._

    • James Tyrrell

      If the ruling was applied to all search engines like Bing, Yahoo, Yandex, Baidu, Naver, Sezam et al it wouldn’t be a problem. But we all know there’s no way such global regulations would work.

      The fact that certain sites will always be there (like the internet archive and others) to remember what you did means your right to be forgotten is essentially “You’re right not to be found on Google”, which makes it ridiculous.

      I’m not suggesting it’s the same as Tianenmen Square, w;hich is equally ridiculous, although thousands of pedophiles asking to be forgotten shouldn’t be trivialized either. With the vast amount of data online it’s an impossible task at present to comply with these kind of requests with any real contemplation. Perhaps in the future with AI improvements we can come up with an automated system that can assess and prune search results but that’s another 10 years away from now.

      What we really need is to educate people and have them realize that their errors from youth to old age are only increasingly going to become easier to find out about. That what used to be only known to close friends will soon be known to anyone with an interest, you might not like it but the world has changed this is just the old guard trying to put their finger in the dyke while ignoring the tidal wave approaching.

      Facial recognition, personal AI’s that will eventually be on our home computers which won’t rely just on google, multiple copies of every image of course as China found out, if someone want’s to get to information they will do it somehow. I appreciate for people wrongly accused or those who can see the grisly images of dead relatives splashed online it is traumatizing, but the only way to have any kind of governance over the internet would be to have a globally accepted authority, which is not going to happen anytime soon.

  9. Sohaib Baig

    If you’ve done something wrong that affects the wider public, then you should not be able to censor it because that is something which you shouldn’t hide. If youve done something wrong that does not affect the broader public then only in my opinion should the link be removed, although such instances where only you are ever involved rarely ever make the news. Like that lying football referee, you shouldn’t be hiding that post, the man did something wrong and probably took bribes, then the fact that it is being publicized is a good thing. In a world of thieves the only crime is getting caught. But here even if you do get caught, you will be ‘forgotten’.